Effective date: Dec
15, 2019
Welcome to PicMagic
("we",
"us"
or "our").
We aim to create new ways for people to express their emotions through the
camera.
These Terms of
Use (these "Terms")
apply to all users and others who download, install, register with, access or
use ("Use"
and "Users",
"you",
as applicable) our mobile application PicMagic ("PicMagic" or "application").
By
downloading PicMagic, you agree to these Terms. If you do not agree to these
Terms, including the mandatory arbitration provision and class action waiver in
Section 15 (Dispute Resolution; Binding Arbitration), do not Use PicMagic.
If you have any
questions about these Terms or PicMagic, please contact us at picmagicservice@gmail.com.
PicMagic is an
application based software that uses artificial intelligence algorithms to
transform your photos into works of art or change the background or foreground,
overlay objects with different objects and clone/copy the style or effects from
other image. The artificial intelligence algorithms use styles inspired by
various famous artists. PicMagic allows you to (i) take photos Using the
application or (ii) upload preexisting photos onto the application. You can
then apply different stylized filters or effects to the photos. Once you choose
a filter or effect, PicMagic’s algorithm runs, transforming the photo. You can
then share the photos through social media sites or store them for personal
use.
General
age limitation. You must be at least 13 years of age to Use PicMagic.
If you are under 18 years of age (or the age of legal majority where you live),
you may only Use PicMagic under the supervision of a parent or legal guardian
who agrees to be bound by these Terms. If you are a parent or legal guardian of
a User under the age of 18 (or the age of legal majority), you agree to be
fully responsible for the acts or omissions of such User in connection with PicMagic.
If you are Using PicMagic on behalf of another person or entity, you represent
that you are authorized to accept these Terms on that person or entity’s behalf
and that the person or entity agrees to be responsible to us if you or the
other person or entity violates these Terms.
Age
limitation for the European Economic Area ("EEA") residents. Due to requirements of the General Data Protection
Regulation ("GDPR")
you shall be at least 16 years old in order to Use PicMagic. To the extent
prohibited by applicable law, we do not allow Use of PicMagic by the EEA residents
younger than 16 years old. If you are aware of anyone younger than 16 using PicMagic,
please contact us at picmagicservice@gmail.com and we will take reasonable steps to delete such User
account of such person and preclude such person from re-registering with PicMagic.
You represent
and warrant that you have the full power and authority to enter into this
agreement and that in doing so you will not violate any other agreement to
which you are a party and that you have not been previously suspended or
removed from Using PicMagic. You further agree to Use PicMagic in compliance
with all applicable laws. PicMagic is not available to any Users previously
prohibited from Using it.
Please refer to
our Privacy Policy for information about how we collect, use and disclose
information about you when you Use PicMagic.
PicMagic may
allow you and other Users to create, store and share content. Except for the
Company License you grant us below, you retain all rights in and to your User
Content, as between you and us. Further, we do not claim ownership of any User
Content that you post on or through PicMagic.
You grant us a
perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully-paid,
transferable sub-licensable license to use, reproduce, modify, adapt, publish,
translate, create derivative works from, distribute, publicly perform and
display your User Content and any name, username or likeness provided in
connection with your User Content in all media formats and channels now known
or later developed, without compensation to you (the "Company License").
You grant us
consent to use the User Content, regardless of whether it includes an
individual’s name, likeness, voice or persona, sufficient to indicate the
individual’s identity. By Using PicMagic, you agree that your User Content may
be used for commercial purposes. You further acknowledge that our use of your
User Content for commercial purposes will not result in any injury to you or to
any person you authorized to act on your behalf. You acknowledge that PicMagic
is supported by advertising revenue and may display advertisements and
promotions, and you hereby agree that we may place such advertisements and
promotions on PicMagic or in conjunction with your User Content. The manner,
mode and extent of such advertisements and promotions are subject to change
without specific notice to you. You acknowledge that we may not always identify
paid services, sponsored content, or commercial communications as such.
You represent
and warrant that: (i) you own the User Content stylized by you on or through PicMagic
or otherwise have the right to grant the rights and licenses set forth in these
Terms; (ii) you agree to pay for all royalties, fees, and any other monies owed
by reason of the User Content you stylize on or through PicMagic; and (iii) you
have the legal right and capacity to enter into these Terms in your
jurisdiction.
You may not
create, post, store or share any User Content that violates these Terms or to
which you do not have all the rights necessary to grant us the Company License
described above. Although we have no obligation to screen, edit or monitor the
User Content, we may delete or remove the User Content at any time and for any
reason.
The User Content
removed from PicMagic may continue to be stored by us, including, without
limitation, in order to comply with our certain legal obligations. PicMagic is
not a backup service and you agree that you will not rely on PicMagic for the
purposes of the User Content backup or storage. We will not be liable to you
for any modification, suspension or discontinuation of PicMagic, or the loss of
any User Content.
You will not
violate any applicable contract, intellectual property law or any other
applicable law or other third-party rights (including the Company rights) or
commit a tort, and you are solely responsible for your conduct while Using PicMagic.
You represent, warrant and agree that you will not Use PicMagic by uploading
the User Content or otherwise, or encourage or assist any other party to Use PicMagic
to:
You may also
only post or otherwise share the User Content that is non-confidential and you
have all necessary rights to disclose. You may not create, post, store or share
any User Content that:
We reserve the
right, in our discretion and at any time, to remove any User Content from PicMagic
or suspend or discontinue PicMagic, introduce new features or impose
limitations on certain features, or restrict access to PicMagic.
PicMagic and the
text, graphics, images, photographs, videos, illustrations, trademarks, trade
names, page headers, button icons, scripts, service marks, logos, slogans,
filters and other content contained therein (collectively, "PicMagic Content")
are owned by us or licensed to us. Except as explicitly stated in these Terms,
we and our licensors reserve all rights in and to PicMagic and the PicMagic
Content. You are hereby granted a limited, nonexclusive, nontransferable,
non-sublicensable, revocable license to Use PicMagic and the PicMagic Content
for your own personal use ("User
License"); however, such User License is subject to these
Terms and does not include any right to: (i) sell, resell or commercially use PicMagic
or the PicMagic Content; (ii) copy, reproduce, distribute, publicly perform or
publicly display the PicMagic Content, except as expressly permitted by us or
our licensors; (iii) modify the PicMagic Content, remove any proprietary rights
notices or markings, or otherwise make any derivative uses of PicMagic or the PicMagic
Content, except as expressly set forth in these Terms; (iv) use any data
mining, robots or similar data gathering or extraction methods; or (v) Use PicMagic
or the PicMagic Content other than as expressly provided in these Terms. Any
Use of PicMagic or the PicMagic Content other than as specifically authorized
herein, without our prior written permission, is strictly prohibited and will
terminate the User License granted under these Terms. You will not remove,
alter or conceal any copyright, trademark, service mark or other proprietary
rights notices incorporated in or accompanying the PicMagic Content.
Any questions,
comments, suggestions, ideas, original or creative materials or other
information you submit about us or PicMagic (collectively, "Feedback"), is
non-confidential and will become our sole property. We will own exclusive
rights, including, without limitation, all intellectual property rights, in and
to your Feedback and will be entitled to the unrestricted use and dissemination
of your Feedback for any purpose, commercial or otherwise, without
acknowledgment or compensation to you.
To the fullest
extent permitted by applicable law, you will indemnify, defend, and hold
harmless us and each of our respective officers, directors, agents, partners
and employees (individually and collectively, "Company Parties")
from and against any loss, liability, claim, demand, damages, expenses or costs
("Claims")
arising out of or related to (i) your Use of PicMagic; (ii) your User Content
or Feedback; (iii) your violation of these Terms; (iv) your violation,
misappropriation or infringement of any rights of another (including
intellectual property rights or privacy rights); or (v) your conduct in
connection with PicMagic. You agree to promptly notify the Company Parties of
any third party Claims, cooperate with the Company Parties in defending such
Claims and pay all fees, costs and expenses associated with defending such
Claims (including, but not limited to, attorneys’ fees). You also agree that
the Company Parties will have control of the defense or settlement of any third
party Claims. This indemnity is in addition to, and not in lieu of, any other
indemnities set forth in a written agreement between you and us or the other
Company Parties.
We do not
control, endorse or take responsibility for any User Content or third-party
content available on or linked to PicMagic.
Your Use of PicMagic
is at your sole risk. PicMagic is provided "as is" and "as
available" without warranties of any kind, either express or implied,
including, but not limited to, implied warranties of merchantability, fitness
for a particular purpose, title, and non-infringement. In addition, we do not represent
or warrant that PicMagic is accurate, complete, reliable, current or
error-free. While we attempt to make your access to and use of PicMagic is
safe, we cannot and do not represent or warrant that PicMagic or servers are
free of viruses or other harmful components. You assume the entire risk as to
the quality and performance of PicMagic.
The Company and
the other Company Parties will not be liable to you under any theory of
liability — whether based in contract, tort, negligence, strict liability,
warranty, or otherwise — for any indirect, consequential, exemplary,
incidental, punitive or special damages or lost profits, even if you have been
advised of the possibility of such damages.
The total
liability of the Company and the other Company Parties, for any claim arising
out of or relating to these Terms or PicMagic, regardless of the form of the
action, is limited to the amount paid, if any, by you to Use PicMagic.
The limitations
set forth in this Section will not limit or exclude liability for the gross
negligence, fraud or intentional misconduct of the Company or the other Company
Parties or for any other matters in which liability cannot be excluded or
limited under applicable law. Additionally, some jurisdictions do not allow the
exclusion or limitation of incidental or consequential damages, so the above
limitations or exclusions may not apply to you.
To the fullest
extent permitted by applicable law, you release the Company and the other
Company Parties from responsibility, liability, claims, demands, and/or damages
(actual and consequential) of every kind and nature, known and unknown
(including, but not limited to, claims of negligence), arising out of or
related to disputes between the Users and the acts or omissions of third
parties.
Transfer and
storage of information about you, whilst you Use PicMagic, is governed by
our Privacy Policy.
Please
read the following Section carefully because it requires you to arbitrate
certain disputes and claims with the Company and limits the manner in which you
can seek relief from us.
Except for small
claims disputes in which you or the Company seek to bring an individual action
in small claims court located in the county of your billing address or disputes
in which you or the Company seeks injunctive or other equitable relief for the
alleged unlawful use of intellectual property, you and the Company waive your
rights to a jury trial and to have any dispute arising out of or related to
these Terms or PicMagic resolved in court.
You and
the Company agree that any dispute arising out of or related to these Terms or PicMagic
is personal to you and the Company and that any dispute will be resolved solely
through individual arbitration and will not be brought as a class arbitration,
class action or any other type of representative proceeding.
You and the
Company agree that these Terms affect interstate commerce and that the
enforceability of this Section 15 will be substantively and procedurally
governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. ("FAA"), to the
maximum extent permitted by applicable law. As limited by the FAA, these Terms
and the Rules, the arbitrator will have exclusive authority to make all
procedural and substantive decisions regarding any dispute and to grant any
remedy that would otherwise be available in court; provided, however, that the
arbitrator does not have the authority to conduct a class arbitration or a
representative action, which is prohibited by these Terms. The arbitrator may
only conduct an individual arbitration and may not consolidate more than one
individual’s claims, preside over any type of class or representative
proceeding or preside over any proceeding involving more than one individual.
ANY CLAIM
ARISING OUT OF OR RELATED TO THESE TERMS OR PicMagic MUST BE FILED WITHIN ONE
YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, THE CLAIM IS PERMANENTLY BARRED, WHICH
MEANS THAT YOU AND THE COMPANY WILL NOT HAVE THE RIGHT TO ASSERT THE CLAIM.
We may make
changes to these Terms from time to time. If we make changes, we will post the
amended Terms to PicMagic and update the "Effective date" above. We
may also attempt to notify you by sending an email notification to the address
associated with your account, if any, or providing notice through PicMagic.
Unless we say otherwise in our notice, the amended terms will be effective
immediately and your continued Use of PicMagic after we provide notice will
confirm your acceptance of those changes. If you do not agree to the amended
terms, you must stop Using PicMagic.
By Using PicMagic,
you also consent to receive electronic communications from us (e.g., via email
or by posting notices on PicMagic). These communications may include notices
about your account (e.g., payment authorizations, password changes and other
transactional information) and are part of your relationship with us. You agree
that any notices, agreements, disclosures or other communications that we send
to you electronically will satisfy any legal communication requirements,
including but not limited to that such communications shall be in writing.
We reserve the
right, without notice and in our sole discretion, to terminate your right to
Use PicMagic. We are not responsible for any loss or harm related to your
inability to Use PicMagic.
If any provision
or part of a provision of these Terms is unlawful, void or unenforceable, that
provision or part of the provision is deemed severable from these Terms and
does not affect the validity and enforceability of any remaining provisions.
The following
terms apply if you Use PicMagic on any device that contains the iOS mobile
operating system ("App")
developed by Apple Inc. ("Apple").
These Terms
constitute the entire agreement between you and us relating to your Use of PicMagic.
The failure of us to exercise or enforce any right or provision of these Terms
will not operate as a waiver of such right or provision. The Section titles in
these Terms are for convenience only and have no legal or contractual effect.
Except as otherwise provided herein, these Terms are intended solely for the
benefit of you and the Company and are not intended to confer third party
beneficiary rights upon any other person or entity.