Terms of Use

Last updated: October 11, 2023

Please read these Terms of Use ("Terms") carefully before using the https://www.befunky.com website and BeFunky mobile applications (the "Service") operated by BeFunky Inc ("us", "we", or "our").

Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service.

By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you do not have permission to access the Service.

Communications

By creating an Account on our service, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.

Purchases

If you wish to purchase any product or service made available through the Service ("Purchase"), you may be asked to supply certain information relevant to your Purchase including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information.

You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information you supply to us is true, correct and complete.

The Service may employ the use of third party services for the purpose of facilitating payment and the completion of Purchases. By submitting your information, you grant us the right to provide the information to these third parties subject to our Privacy Policy.

We reserve the right to refuse or cancel your order at any time for reasons including but not limited to: product or service availability, errors in the description or price of the product or service, error in your order or other reasons.

We reserve the right to refuse or cancel your order if fraud or an unauthorized or illegal transaction is suspected.

Availability, Errors and Inaccuracies

We are constantly updating product and service offerings on the Service. We may experience delays in updating information on the Service and in our advertising on other web sites. The information found on the Service may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Service and we cannot guarantee the accuracy or completeness of any information found on the Service.

We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.

Contests, Sweepstakes and Promotions

Any contests, sweepstakes or other promotions (collectively, "Promotions") made available through the Service may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms, the Promotion rules will apply.

Content

Our Service allows you to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material ("Content"). You are responsible for the Content that you post on or through the Service, including its legality, reliability, and appropriateness.

By posting Content on or through the Service, you represent and warrant that: (i) the Content is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in these Terms, and (ii) that the posting of your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. We reserve the right to terminate the account of anyone found to be infringing on a copyright.

You retain any and all of your rights to any Content you submit, post or display on or through the Service and you are responsible for protecting those rights. We take no responsibility and assume no liability for Content you or any third party posts on or through the Service. However, by posting Content using the Service you grant us the right and license to use, modify, perform, display, reproduce, and distribute such Content on and through the Service.

BeFunky Inc has the right but not the obligation to monitor and edit all Content provided by users.

In addition, Content found on or through this Service are the property of BeFunky Inc or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.

AI-Enabled Tools

Some of our product and service offerings utilize or are developed with Artificial Intelligence (AI) capabilities. These AI tools are designed to process vast amounts of data and generate outputs using algorithms, without human-like understanding or discretion.

Artificial intelligence, being in its nascent stage globally, might not always produce perfect or universally agreeable results. The outputs from our AI tools may sometimes not align with users’ expectations, personal beliefs, or sensitivities. It is crucial to understand that these results, being generated by algorithms, do not represent BeFunky’s views or intentions. While we strive to provide the most accurate and user-friendly experience possible, please be aware that the results from these AI tools are inherently probabilistic and might contain omissions, inaccuracies, or errors.

BeFunky neither warrants nor guarantees the accuracy, completeness, or reliability of outputs from our AI tools. We disclaim any liability or responsibility arising from the use, interpretation, or reliance on these outputs, including any indirect or consequential effects they might cause.

We value our users’ insights and feedback. If you have concerns, suggestions, or feedback regarding our AI-enabled features, or if you believe that the AI has produced content that may be considered offensive or inappropriate, please reach out to us:

• By email: support@befunky.com
• Through the online form on our website

Accounts

When you create an account with us, you guarantee that you are above the age of 16, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Service.

You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.

You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene.

We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders in our sole discretion.

BeFunky offers two different service accounts:

Basic Account

If you select the "Basic Account", you may (i) use the BeFunky photo effects available via our website to alter your photos (a “Raw Photo”); (ii) distribute your Raw Photos that have undergone the BeFunky photo effects (a "BeFunky Image") to others; (iii) display your BeFunky Images on other web sites; including but not limited to, social networking sites such as Facebook, Instagram, and LinkedIn; and (iv) you may sell or otherwise commercially benefit from your images edited with BeFunky Basic Account features.

Plus Account

If you select the "Plus Account" and pay the Plus Account fees, you may: (i) use the BeFunky photo effects available via our website to alter your and others Raw Photos; (ii) distribute your and/or others' BeFunky Images to others; (iii) display your and/or others' BeFunky Images on other web sites including, but not limited to, social networking sites such as Facebook, Instagram, and LinkedIn; and (iv) sell or otherwise commercially benefit from your images edited with BeFunky Plus Account features.

You may not grant your rights to any other person. For example, you may not allow others to use your Premium Account to create BeFunky Images.

Plus Account Subscription Renewal

Your BeFunky subscription will automatically renew at its expiration date unless you cancel it prior to your payment date. A monthly subscription renews after 30 days from the purchase date and an annual subscription renews after 365 days from the purchase date. If you cancel your subscription any time before your payment processing date, you will continue to have an active subscription until the date on which your next payment was scheduled. For example, if your payment is scheduled for the 30th, but you cancel your subscription on the 15th, you will still have an active subscription until the 30th.

You may cancel your subscription at any time from your My Account page. Due to security and privacy reasons, under no circumstances will BeFunky cancel a subscriber’s subscription via email or phone. A subscription cancellation can only be made by the respective subscriber from their My Account page.

If you decide to cancel your subscription after your payment has been processed, BeFunky will not issue a refund. Learn more about BeFunky's Renewal Policy by visiting this page.

Account Fees and Further Account Details

• The fees and other details with respect to each account are set forth at Account Details. BeFunky, at its sole discretion, may modify account fees.
• BeFunky will not be obligated to issue any refunds for any fees charged to your Credit/Debit Card/PayPal Account.

Account Terms

You represent and warrant that:

• You are authorized to use and have fees charged to the credit card number, debit card number or paypal account you provide via our website.
• You are authorized to use, upload, modify and create derivative works of all Raw Photos you upload to our website.
• You are authorized to distribute and display all BeFunky Images you create via our website.
• All of your registration and account information is true, accurate and complete.
• You will maintain the security of your password.
• You accept all responsibility for all activity that occurs under your user name.

Any breach or suspected breach of any of the above representations or warranties may result in immediate termination of your account or suspension of your account without, if applicable, any refund.

BeFunky's Rights with Respect to your BeFunky Images

If you make your BeFunky Image available to the public on our website, BeFunky has the right to use your BeFunky Image anywhere on our website (including, but not limited to, displaying your BeFunky Image on BeFunky's Editors Choice page).

Minors

In order to create an account, you must be 16 years of age or older. If children between the ages of 16 and 18 wish to use the Site, they must be registered by their parent or guardian. By registering, you represent and warrant that you are 16 years of age or older.

Copyright Policy

We respect the intellectual property rights of others. It is our policy to respond to any claim that Content posted on the Service infringes on the copyright or other intellectual property rights ("Infringement") of any person or entity.

If you are a copyright owner, or authorized on behalf of one, and you believe that the copyrighted work has been copied in a way that constitutes copyright infringement, please submit your claim via email to dmca@befunky.com, with the subject line: "Copyright Infringement" and include in your claim a detailed description of the alleged Infringement as detailed below, under "DMCA Notice and Procedure for Copyright Infringement Claims"

You may be held accountable for damages (including costs and attorneys' fees) for misrepresentation or bad-faith claims on the infringement of any Content found on and/or through the Service on your copyright.

Managing and Deleting Your Personal Data

You have the right to delete your personal data from our systems. For detailed instructions on how to do this, please refer to the 'Managing and Deleting Your Personal Data' section in our Privacy Policy at https://www.befunky.com/privacy/. Once you request data deletion, we will immediately cease collecting your Personal Data, and any Personal Data that we have collected prior to your request will be deleted from our systems.

DMCA Notice and Procedure for Copyright Infringement Claims

You may submit a notification pursuant to the Digital Millennium Copyright Act (DMCA) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

• an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright's interest;
• a description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
• identification of the URL or other specific location on the Service where the material that you claim is infringing is located;
• your address, telephone number, and email address;
• a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

You can contact our Copyright Agent via email at dmca@befunky.com

Intellectual Property

The Service and its original content (excluding Content provided by users), features and functionality are and will remain the exclusive property of BeFunky Inc and its licensors. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of BeFunky Inc.

Links to Other Web Sites

Our Service may contain links to third party web sites or services that are not owned or controlled by BeFunky Inc

BeFunky Inc has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites.

You acknowledge and agree that BeFunky Inc shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third party web sites or services.

We strongly advise you to read the terms and conditions and privacy policies of any third party web sites or services that you visit.

Termination

We may terminate or suspend your account and bar access to the Service immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms.

If you wish to terminate your account, you may simply discontinue using the Service.

All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

Indemnification

You agree to defend, indemnify and hold harmless BeFunky Inc and its licensee and licensors, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees), resulting from or arising out of a) your use and access of the Service, by you or any person using your account and password; b) a breach of these Terms, or c) Content posted on the Service.

Limitation of Liability

IN NO EVENT SHALL BEFUNKY INC, NOR ITS DIRECTORS, EMPLOYEES, PARTNERS, AGENTS, SUPPLIERS, OR AFFILIATES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (II) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICE; (III) ANY CONTENT OBTAINED FROM THE SERVICE; AND (IV) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

Disclaimer

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR COURSE OF PERFORMANCE.

BEFUNKY INC, ITS SUBSIDIARIES, AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT A) THE SERVICE WILL FUNCTION UNINTERRUPTED, SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; B) ANY ERRORS OR DEFECTS WILL BE CORRECTED; C) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS.

Exclusions

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.

Governing Law

These Terms shall be governed and construed in accordance with the laws of Oregon, United States, without regard to its conflict of law provisions.

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have had between us regarding the Service.

Changes

We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.

By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use the Service.

Contact Us

If you have any questions about these Terms, please contact us:

• By email: support@befunky.com
• Through the online form on our website