TERMS OF USE

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.

1. DESCRIPTION OF PicMagic

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.

2. ELIGIBILITY

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.

3. PRIVACY

Please refer to our Privacy Policy for information about how we collect, use and disclose information about you when you Use PicMagic.

4. USER CONTENT

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.

5. PROHIBITED CONDUCT AND 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.

6. LIMITED LICENSE; COPYRIGHT AND TRADEMARK

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.

7. FEEDBACK

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.

8. INDEMNIFICATION

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.

9. DISCLAIMERS

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.

10. LIMITATION OF LIABILITY

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.

11. RELEASE

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. 

12. TRANSFER AND PROCESSING DATA

Transfer and storage of information about you, whilst you Use PicMagic, is governed by our Privacy Policy.

13. DISPUTE RESOLUTION; BINDING ARBITRATION

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.

14. CHANGES TO THESE TERMS

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.

15. ELECTRONIC COMMUNICATIONS

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.

16. TERMINATION

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.

17. SEVERABILITY

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.

18. ADDITIONAL TERMS APPLICABLE TO IOS DEVICES

The following terms apply if you Use PicMagic on any device that contains the iOS mobile operating system ("App") developed by Apple Inc. ("Apple").

19. MISCELLANEOUS

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.