User Terms

1. About us and these terms
   1. Hi, welcome to Envato ImageGen, where you can find inspiration for your next creative project through the use of our suite of tools that are powered by artificial intelligence (AI).
   2. When we say ‘we’, ‘us’ or ‘our’, we mean Envato Pty Ltd, and we own and run the Envato ImageGen website located at https://labs.envato.com/ (Product).
   3. By using our Product (or otherwise browsing the Product’s website), you agree to be bound by these Product User Terms, any policies, guidelines, instructions and any other terms and conditions (collectively “Product Terms”) made available on the Product website (as amended from time to time). The Product Terms will apply to any use of the Product and the outputs generated by the Product so please make sure you read and understand them before using the Product.
2. User of the Product
   1. Use and Access: You must have an Individual Envato Elements subscription to use our Product and generate Output. Your access to the Product is subject to your compliance with Envato Elements’ terms and conditions. Please note that if you are an Enterprise User, you will not be able to access this Product.
   2. Browsing: You need to be 16 years or over to browse this Product. We don’t knowingly collect any information from anyone aged under 16 years. Only a limited range of Content (as defined at Clause 4.1) may be made available to you without the requirement of an Envato Elements subscription. You agree that you remain bound by these Product Terms to the extent they apply to your limited use of the Product (including any Content).
3. Third Party Suppliers and Services
   1. We may, from time to time, require or make available the use of, or you may otherwise elect to use, third party software, services, websites, platforms or apps (Third Party Service/s) in order to make certain content or services available to you
   2. Third Party Services will also include any generative AI tools, programs, services, websites and platforms, which are owned and operated by third parties including OpenAI, BRIA, Clipdrop, Stable Diffusion and Leonardo Creative (these AI tools, programs, services, websites and platforms being Third Party AI Tools).
   3. With respect to these Third Party Services:
      • your use of Third Party Services via our Product is at your own risk, and may be subject to the terms and conditions applicable to those Third Party Services (including the applicable terms and conditions of a Third Party AI Tool);
      • you agree that we have no liability arising from your use of, or access to any content or service made available made by aThird Party Service (including any use of any content generated by a Third Party AI Tool);
      • to the extent permitted by law, we do not endorse or assume any responsibility for any Third Party Service used as part of the Product, and we will not be liable to you in any way whatsoever for any matters related to such Third Party Service; and
      • unless otherwise stated by Envato, we are not affiliated with or otherwise associated with any Third Party Services (or any Third Party AI Tools), that are used as part of the Product.
4. Output and Content
   1. The Product will generate an output (“Output”) comprising of a collection of images, artwork and graphics (collectively “Content”) based on specific prompts and/or other input submitted by you to the Product (all inputted materials being Input). To avoid doubt, Content includes "ImageGen Edited Content" which are any edited or modified versions of Content using the Product’s in-platform editing tools.
   2. Due to the nature of the Product and artificial intelligence generally, your Output may not be unique and other users may receive similar Output from the Product. As such, you acknowledge that other users of the Product may submit Input that is similar to your own Input, which may result in the generation of similar or identical Outputs. You acknowledge and agree that in those circumstances, the specific Output received by another user will not be considered your Output and that user will have the right to use that Output and its Content for their own purposes in accordance with these User Terms.
5. Ownership
   1. Envato ImageGen: All rights, title and interest (including intellectual property rights) in and to the Envato ImageGen Product, including the website, information, software, APIs, products, text, design, logos, trademarks, graphics and other materials that comprise of the Product are owned and/or controlled by Envato, its affiliates, and its licensors.
   2. Input: To the extent that the Input is not pre-existing content provided by us via the Product platform (such as any suggested prompts), you remain the owner of the Input that you submit into the Product, and you represent and warrant that you have all necessary rights or licenses to use those materials and content as part of your Input/s. You acknowledge that you are responsible for all Input that you submit to the Product, and must ensure that the Input does not violate any applicable laws, third party rights, or these User Terms. You warrant that you have all rights, licenses, and consents required to use and Submit the Input into the Product and that your Input (including prompts) does not use or include any names, likenesses of real people, trademarks, trade dress, logos, works of art or architecture, or other elements that may be protected by third-party intellectual property rights that you do not have the rights to use.
   3. Output and Content: Subject to applicable laws and the terms and conditions of applicable Third Party AI Tools, you are granted a non-exclusive, commercial, worldwide, royalty-free and perpetual license to use the Content from each Output generated by you to create new works that incorporate the Content with other content and/or elements, such that the final new work is larger in scope and different in nature than the Content itself (such new work being an “End Product”). To avoid doubt, Content edited using ImageGen tools available on the platform (ie. Content that is "ImageGen Edited Content") will not be considered as creating a new work, or a standalone "End Product". In accordance with this Clause 5.3, ImageGen Edited Content must still be used and/or incorporated into a new work that is larger in scope than the ImageGen Edited Content itself.
   4. Output Restrictions: You acknowledge that in respect of any Content generated as part of an Output, you will NOT yourself nor will you permit others to:
      • sell, modify, re-use, re-sell Content on a stand-alone basis;
      • use Content for unlawful purposes, including those purposes set out in Envato’s Acceptable Use Policy;
      • use Content in any application that allows an end user to customize a digital or physical product to their specific needs, such as an “on demand”, “made to order” or “build it yourself” application;
      • use Content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, and brochure design templates), but to avoid doubt, such Content may be used for “preview” or “demo” purposes, provided that the Content is not made available as part of the template download;
      • use or permit the use of the Content, or any part thereof, as a trademark or service mark, or claim any proprietary rights of any sort thereto; and
      • use the Content as part of any machine learning and/or artificial intelligence purposes or technologies (including those designed or intended for the identification of natural persons).
   5. You acknowledge that in respect of any Output generated by you:
      • Envato, its affiliates and/or its related entities or successors retain worldwide, commercial and perpetual rights to use, copy, reproduce, process, adapt, modify, publish, transmit, create derivative works of, publicly display, publicly perform, and distribute any Output generated by you for any reasonable business purpose of the Group Companies (as defined at Clause 10.3) including marketing and promotional purposes and developing new products, features and services (and granting non-exclusive sub-licenses to permit its licensees to do the same);
      • Envato has the right to use the Output for the purposes of providing, maintaining, promoting, and improving its products and services;
      • Envato has the right to use the Output for the purposes of complying with applicable laws, enforcing our User Terms and policies and keeping our Product safe; and
      • Envato has the right (and at its sole discretion) to make any Output publicly available on the Product platform “AS IS”, and grant non-exclusive, commercial worldwide, royalty-free licenses to other users to access and use such Output (being “Public Content”).
   6. Public Content: You are granted a non-exclusive, worldwide, royalty-free and perpetual license to access and use any Public Content (which includes any Output of other Users that Envato makes available on the Product) to create End Products in accordance with Clause 5.3 above. To avoid doubt:
      • Public Content is made available to you on an “AS IS” basis. We disclaim all warranties, express or implied, including any implied warranties of non-infringement, merchantability and fitness for a particular purpose; and
      • Output Restrictions set out under Clause 5.4 apply to the use of any Public Content.
   7. You acknowledge and agree that:
      • all Content has been generated via a Third Party Service (including Third Party AI Tools), and Envato makes no representations or warranties as to rights in or lack of third party infringement risk in relation to such Content (which may include names and images);
      • Envato takes no responsibility and assumes no liability for the Output you generate or your use of any Content generated as part of the Output for any purpose; and
      • Envato is not responsible for any Output generated via any Third Party Services (including Third Party AI Tools) and, without limiting anything else in these User Terms, section 10 of these User Terms applies in connection with such matters in all respects.
   8. Copyright, trademark and intellectual property claims: We respect the intellectual property rights of others. If you believe that any specific Output available on the Product infringes any intellectual property right (including copyright) please send a notice of alleged infringement via the process outlined in Envato’s Intellectual Property Policy. Your submission must contain the following, at a minimum
      • Explain the content in the Item that you claim infringes your copyright, including a description and where we can find it the Item – include the URL.
      • Explain your copyrighted content and let us know where we can see this published – include the URL.
      • Give us a detailed explanation about how you believe the content in the Item violates your copyright.
      • Include your full name and contact details, including your address, phone number and email address.
      • Include the following two statements:
        • “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorised by the copyright owner, its agent, or the law.”; AND
        • “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorised to act on behalf of the owner of an exclusive right that is allegedly infringed.”
      • Your signature and date. A digital signature is sufficient, so long as it is yours.
6. Our use of your information
   1. Privacy: You may provide us with personal information like user name, email address, images, and text prompts t hat you enter. We respect your privacy and process your information in accordance with our Privacy Policy. Our Privacy Policy explains how we deal with your information.
   2. Confidential Information: We value your information and take reasonable precautions to protect it. While using the Product, you may also become aware of confidential information about us, or someone else. You promise to not disclose any confidential information made available to you through Product to any other person.
7. Playing fair
   1. Prohibited Conduct: Your use of the Product (including your use of any of Output) must comply with our Product Terms as may be published and/or updated from time to time, and as part of this Clause 7.
   2. Things you cannot do: In addition to the Output Restrictions set out at Clause 5.4, you must not (either in your own right or through any third party), and you must not permit any third party to:
      • rent, lease, provide access to or sublicense the Product (or any component of it) to a third party;
      • use the Product to provide, or incorporate the matters contemplated by the Product (including any Output) into, any product or service provided to a third party;
      • use the Product to develop a similar or competing product or service;
      • reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public materials to the Product;
      • copy, modify or create any derivative work of the Product;
      • download or use Output that you do not intend to appropriately use, to use scripts or bots to mass download Output (this includes using any means whatsoever to scrape/download the entire library and/or database of Output from the Product); or
      • use, access, download or otherwise make available the Product, except as authorised by applicable trade restrictions, including but not limited to US, EU and UK sanctions and export controls. You agree not to use the Product for any purpose prohibited by applicable trade restrictions.
   3. Acceptable use: You agree that your use of the Product and any Content is subject to Envato’s Acceptable Use Policy, and you agree that you won’t use the Product in any way that (including the submission of Input or creation of Output):
      • affects other users’ use or enjoyment of the Product;
      • is false, misleading, fraudulent, unlawful, abusive, harassing, defamatory, obscene, vulgar, or offensive;
      • infringes others’ rights, including privacy or intellectual property rights;
      • discloses personal information about others, particularly sensitive information;
      • contains a virus, spyware, or other harmful component; or
      • contains commercial solicitation or ‘spam’.
8. Linking; apps made by others
   1. Linking to the Product: We reserve the right to insist that any link to the Product be discontinued, and to revoke your ability to link to the Product.
   2. Links from the Product: If the Product contains links to third party websites, you acknowledge that Envato has no control or responsibility over anything on those sites, and does not endorse or sponsor those sites, even if they are affiliated to us.
9. Legal Housekeeping
   1. Eligibility, suspension or termination: We may, using reasonable discretion, decide whether or not your use of the Product complies with our Product Terms (as described in section 2.2 above). We can suspend or terminate access at any time for any reason (acting reasonably of course) including:
      • if you breach any Product Terms;
      • if you act in a way that does not align with the values of the Envato community;
      • if you act in a way that could cause us or others harm; or
      • if you have breached the terms and conditions of Envato Elements.
   2. Group Companies: If an indemnity, limitation or disclaimer of liability, promise or release (a ‘benefit’) is given in our favour in these terms we hold that benefit on trust for the other related parties of ours. We may enforce that benefit as trustee for and on behalf of the other Group Companies as beneficiaries under that trust.
   3. We may use the services of another Group Company to collect payment or carry out other activities with you to bring you the Product.
10. Liability and indemnity - between us and You
    1. You indemnify us against all losses, costs (including legal costs), expenses, demands or liability that we incur arising out of, or in connection with, a third party claim against us relating to your use of the Product, any Output or Content or use of any products or services forming part of any Third Party Service that you access, or any breach by you of the terms and conditions of a Third Party Service (excluding any losses we incur arising out of our own gross negligence, wilful misconduct or breach of contract).
    2. To the extent permitted by law, the Product, the Output or Content and all Third Party Services are made available to you on an “AS IS” basis. We disclaim all warranties, express or implied, including any implied warranties of non-infringement, merchantability and fitness for a particular purpose. As artificial intelligence is a rapidly evolving landscape use of the Product may result in Output that does not accurately reflect your Input, real people or places. When you use the Product you acknowledge and agree that:
       • Output may not be accurate and should not be relied on as a source of truth or as a substitute for any professional advice;
       • you are responsible (at your own cost and expense) for ensuring that you have evaluated and assessed the Output for the relevant accuracy and appropriateness (including non-infringement of third party rights) before you use the Output for any purposes (commercial or non-commercial);
       • you will not use any Output relating to a person in any manner which could have a legal or material impact on that person, for example, educational, employment, financial, legal, medical or other material decisions;
       • the Product may generate incorrect or offensive Output and such Output does not represent Envato’s views;
       • if any Output generated includes references to third party products or services, it does not mean that Envato has any endorsement or affiliation with that third party.
    3. Our liability to you in connection with the Product, your use of the Product or the Product Terms, in contract, tort (including negligence) or otherwise, is limited as follows:
       • we exclude liability for any of these things incurred by you: loss of revenue, loss of profit, loss of goodwill, loss of customers, loss of capital, damage to reputation, loss in connection with any other contract, loss of data, or indirect, consequential or special loss, damage or expense, except where such loss is caused by our gross negligence, wilful misconduct or breach of contract; and
       • our total aggregate liability arising out of or related to a claim or relating to these terms or the products or services provided in connection with the Product, shall be limited to USD$100.
    4. Availability: We strive to have the Product available to you 24 hours a day, seven days a week but you know how the internet works; occasionally you might not be able to access the Product, and this might happen for any reason, at any time, with or without notice, or at our absolute discretion. We might also change aspects of how the Product works, including the kinds of Output available on the Product. Where possible, we will give you reasonable prior notice of these changes. We and any of the Group Companies will not be liable to you for any loss you suffer as a result of these things.
    5. Third party: If you’re agreeing to these terms on behalf of a third party, you agree and confirm that you have full legal authority to bind that third party.
    6. Consumer laws: In some places there may be non-excludable warranties, guarantees or other rights (‘non-excludable consumer guarantees’). We do not exclude, restrict or modify non-excludable consumer guarantees in these terms. Except for non-excludable consumer guarantees, and otherwise to the maximum extent permitted by law, we are bound only by the express promises made in these terms. Our liability for breach of a non-excludable consumer guarantee is limited, at our option, to replacing or paying the cost of replacing the relevant Item or service, (unless the non-excludable consumer guarantee says otherwise). You must not use an Item in violation of any export laws that apply to you.
    7. Blocking you: We may block you if we reasonably believe there is a risk associated with you, including if it breaches a law or regulation. Examples of where we might do this include where we reasonably believe there is a legal or regulatory risk or a risk of loss being suffered by us or our members. As our sites are global, there are different laws that may apply and these may restrict our relationship with you.
    8. Relationship between the parties: Nothing in these terms is to be construed as constituting a partnership, joint venture, employment or agency relationship between you and us, or between you and any other member. Neither you nor us can bind each other in any way.
    9. Notices: Any notice you send us must be submitted via [email protected]. Any notice we send to you will be emailed to the email address you provided to us.
    10. Changes to these terms: We may change these User Terms at any time and, if we make changes, we will take reasonable steps to let you know about the changes before they take effect. You can also keep track of whether changes have been made to our User Terms by referring to the version and effective date at the footer of the User Terms. If a change we make has a material effect on you to your detriment we will give you reasonable prior notice about the change, before it takes effect, and you may cease using our Product. If you continue to use the Product after the changes are made, then you will be agreeing to the changes regardless of the amount of time which has elapsed.
    11. Interpretation: Words like ‘include’ and ‘including’ are not words of limitation and where anything is within our discretion we mean our sole discretion.
    12. Applicable Laws: We control and operate the Product from our offices in Australia. The laws of Victoria, Australia govern these User Terms, and you submit to the jurisdiction of the courts there for the resolution of any dispute between us.
11. Definitions

    The following definitions apply to these terms:

    Group Companies: Envato Pty Ltd and any company that controls, is controlled by or is under common control with us.

    We, our, or us means Envato Elements Pty Ltd ABN 87 613 824 258.

Envato ImageGen User Terms v4, effective date Monday 25th March 2024.