Terms of Service
Last modified: March 3, 2023
These Terms of Service ("TOS") govern Your access and use of the mobile app (the "App") provided by Avatarify, Inc. ("Avatarify", "we" or "us"). By downloading, updating, accessing and/or using the App, you ("You") agree to be bound by this TOS. If You do not agree to this TOS, You will not have the right to download, update, access or use the App. You agree that by downloading the App from the Apple Store, Google Play or other distribution services, You are bound by the respective terms and conditions of such distribution services.
You represent that: (a) if You are entering into this TOS on behalf of another person, You are duly authorized by such person to enter into this TOS which will be binding upon both You individually and such other person (and "You" as used in this TOS shall refer to both), (b) You are of the legal age to form a binding contract with us, and (c) You are not a person barred from subscribing to, using or accessing the App under the laws of the United States or other applicable jurisdiction.
1. Changes to this TOS
We reserve the right to update or make changes to this TOS from time to time in our sole discretion, and we may notify You of changes by making the revised version of this TOS accessible through the App, which changes will become effective immediately. You can determine when this TOS was last revised by referring to the "Date of Revision" at the top of this TOS. Your continued access or use of the App after any changes to this TOS have been posted shall constitute Your agreement and consent to such changes. Please return to this TOS periodically to ensure familiarity with the most current version of this TOS.
2. Privacy Policy
Any information that that we collect based on Your use of the App, and how we use and share such information, is described in the Privacy Policy. Please read our Privacy Policy carefully. This TOS incorporates by reference the terms and conditions of our Privacy Policy. Notwithstanding anything in our Privacy Policy or this TOS, You understand and agree that the App uses the Internet and third party networks which are not secure, and we cannot guarantee that any transmission made by You in using the App is or will be secure.
3. Functionality of the App; License to Avatarify
The App allows You to use an image, photo or other content to create an avatar based on the image, photo or other content and to modify the avatar. You hereby grant us an irrevocable, worldwide, non-exclusive, royalty-free, sublicensable, assignable right and license to use any image, photo or other content uploaded by You to the App for the purposes of providing the functionality available on the App.
4. License to Use App
Subject to Your compliance with this TOS, and solely for so long as You are permitted by Avatarify to access and use the App during the term of this TOS, Avatarify grants to You a limited, revocable, non-exclusive, non-transferable right to access and use the App for Your individual personal use only.
5. Restrictions; Code of Conduct
In accessing and using the App, You agree to abide by the following rules, restrictions and limitations:
Avatarify reserves and retains all right, title and interest (including all intellectual property rights) in and to the App and the technology, systems and software used to provide the App. Avatarify reserves all rights not expressly granted to You in this TOS. Subject to Avatarify's ownership rights, as between You and Avatarify, You retain all intellectual property rights in to the images, photos and other content provided by you that are modified or processed through the App and are otherwise generated through the use of the App (collectively, the "Content").
7. Claims of Copyright Infringement
If You believe in good faith that materials transmitted or created through the App infringe Your copyright, You (or Your agent) may send Avatarify a notice requesting that we remove the material or block access to it. Please provide the following information: (a) an electronic or physical signature of the owner (or person authorized to act on behalf of the owner) of the copyrighted work; (b) a description of the copyrighted work that You claim has been infringed upon and sufficient information for us to locate such copyrighted work; (c) Your address, telephone number, and e-mail address; (d) 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; and (e) 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.
If You believe in good faith that someone has wrongly filed a notice of copyright infringement against You, You may send Avatarify a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices should be sent to us via email at:
Avatarify, Inc.
Attention: DMCA Agent
[email protected].
Avatarify has the right to suspend or terminate the use of the App by anyone engaged in suspected repeated copyright infringement.
8. Indemnification
You agree to indemnify and hold Avatarify and its officers, directors, shareholders and employees harmless from and against any loss, costs, liabilities and expenses (including reasonable attorneys' fees) resulting from Your breach of this TOS, Your use of the App, Content, and any infringement by You of any intellectual property or other right of any third party.
9. Representations and Warranties
You represent and warrant that You are the sole owner of, or otherwise have all requisite rights and licenses to use, the Content. You warrant that the creation, modification or any other use of the Content does not infringe or violate any rights of any third party, including any intellectual property rights, data privacy rights, rights of publicity and privacy rights.
10. Termination
This TOS will continue in effect until terminated by either You or Avatarify as set out below. You may terminate this TOS at any time by ceasing Your access and use of the App. Avatarify may terminate this TOS and your right to access or use the App, with or without notice to you, for any reason, including suspected breach of this TOS by You. Upon any termination of this TOS, Sections 6, 7, 8, 9, 10, 11, 12 and 13 will survive.
11. Disclaimers; Limitation of Liability
THE APP IS PROVIDED TO YOU ON AN "AS-IS" AND "AS AVAILABLE" BASIS AND THE USE THEREOF IS AT YOUR SOLE RISK. AVATARIFY MAKES NO, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NONINFRINGEMENT, AND TITLE WITH RESPECT TO THE APP, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. AVATARIFY DOES NOT WARRANT THAT: (A) THE APP (OR THE RESULTS OBTAINED FROM THE USE THEREOF) WILL BE TIMELY, ERROR-FREE, SECURE OR UNINTERRUPTED; (B) THE APP MEET YOUR REQUIREMENTS; OR (C) ANY ERRORS OR MALFUNCTIONS IN THE APP WILL BE CORRECTED.
AVATARIFY SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR OTHER THEORY, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES OR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, COST OF SUBSTITUTE PROCUREMENT, ARISING IN WHOLE OR IN PART FROM YOUR USE OF (OR INABILITY TO USE) THE APP, EVEN IF AVATARIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL AVATARIFY BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ANY CAUSES BEYOND ITS REASONABLE CONTROL. IF ANY OF THE FOREGOING LIMITATIONS ARE FOUND TO BE INVALID, AVATARIFY'S AGGREGATE LIABILITY FOR ALL CAUSES OF ACTION, DAMAGES, EXPENSES AND LOSSES OF ANY KIND AND NATURE WHATSOEVER SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
12. Governing Law; Forum
This TOS shall be governed by and construed in accordance with the internal laws of the United States and the State of California, without giving effect to its conflict of laws provisions, regardless of Your location. You agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in the New York, New York, and You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in New York, New York. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.
13. Misc.
If any provision of this TOS is found to be unlawful, void or for any reason unenforceable, that provision will not affect the validity and enforceability of any remaining provision and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties. This TOS, together with the Privacy Policy, constitute the entire agreement between Avatarify and You pertaining to any and all access and use of the App and supersede any and all prior or contemporaneous written or oral agreements between us and You pertaining thereto. No amendment or waiver of this TOS will be binding on Avatarify unless set forth in a writing expressly identifying this TOS and signed by an officer of Avatarify and You. Any caption, heading or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
14. Contact Us
If You have any questions regarding the use of the App or this TOS, please contact us at [email protected].
These Terms of Service ("TOS") govern Your access and use of the mobile app (the "App") provided by Avatarify, Inc. ("Avatarify", "we" or "us"). By downloading, updating, accessing and/or using the App, you ("You") agree to be bound by this TOS. If You do not agree to this TOS, You will not have the right to download, update, access or use the App. You agree that by downloading the App from the Apple Store, Google Play or other distribution services, You are bound by the respective terms and conditions of such distribution services.
You represent that: (a) if You are entering into this TOS on behalf of another person, You are duly authorized by such person to enter into this TOS which will be binding upon both You individually and such other person (and "You" as used in this TOS shall refer to both), (b) You are of the legal age to form a binding contract with us, and (c) You are not a person barred from subscribing to, using or accessing the App under the laws of the United States or other applicable jurisdiction.
1. Changes to this TOS
We reserve the right to update or make changes to this TOS from time to time in our sole discretion, and we may notify You of changes by making the revised version of this TOS accessible through the App, which changes will become effective immediately. You can determine when this TOS was last revised by referring to the "Date of Revision" at the top of this TOS. Your continued access or use of the App after any changes to this TOS have been posted shall constitute Your agreement and consent to such changes. Please return to this TOS periodically to ensure familiarity with the most current version of this TOS.
2. Privacy Policy
Any information that that we collect based on Your use of the App, and how we use and share such information, is described in the Privacy Policy. Please read our Privacy Policy carefully. This TOS incorporates by reference the terms and conditions of our Privacy Policy. Notwithstanding anything in our Privacy Policy or this TOS, You understand and agree that the App uses the Internet and third party networks which are not secure, and we cannot guarantee that any transmission made by You in using the App is or will be secure.
3. Functionality of the App; License to Avatarify
The App allows You to use an image, photo or other content to create an avatar based on the image, photo or other content and to modify the avatar. You hereby grant us an irrevocable, worldwide, non-exclusive, royalty-free, sublicensable, assignable right and license to use any image, photo or other content uploaded by You to the App for the purposes of providing the functionality available on the App.
4. License to Use App
Subject to Your compliance with this TOS, and solely for so long as You are permitted by Avatarify to access and use the App during the term of this TOS, Avatarify grants to You a limited, revocable, non-exclusive, non-transferable right to access and use the App for Your individual personal use only.
5. Restrictions; Code of Conduct
In accessing and using the App, You agree to abide by the following rules, restrictions and limitations:
- You will not modify, translate, adapt or reformat the App;
- You will not decipher, decompile, disassemble, or reverse-engineer, or otherwise attempt to discover the source code or structure of, the software or materials comprising the App (except where the foregoing is permitted by applicable local law notwithstanding such restrictions, and then only to the extent that such intended activities are disclosed in advance in writing to us);
- You will not interfere with or circumvent any security feature of the App or any feature that restricts or enforces limitations on the use of the App;
- You will not use the App to gain unauthorized access to our or any third party's data, systems or networks;
- You will not use the App in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt our systems and networks, or otherwise interfere with other users' use of the App;
- You will not use the App to create content which: (a) is offensive as based on a person's age, color, race, national origin, gender identity, sexual preference or disability; (b) is unlawful, hateful, violent, threatening, harassing, racist, libelous, defamatory, profane, obscene, indecent, lewd, pornographic, abusive, harmful, sexual or otherwise objectionable; (c) is fraudulent or deceptive; (d) infringes or violates any copyright, patent, trademark, trade secret or other intellectual property right of any party; (e) contains any personal or private information of a third party without such third party's consent; (f) contains information or content which You do not have the right to use; or (g) promotes or solicits illegal activities and products.
- You will not use the App in any way that violates any rights of a third party, including intellectual property rights, data privacy rights, rights of publicity and privacy rights;
- You will not use the App in any way that, in Avatarify's sole discretion, may expose us and others to liability or damages;
- You will not remove, change or obscure any copyright, trademark notice, trademark, hyperlink or other proprietary rights notices contained in the App; and
- You will comply with all applicable laws in Your access and use of the App, including the laws of Your country if You live outside of the United States of America.
Avatarify reserves and retains all right, title and interest (including all intellectual property rights) in and to the App and the technology, systems and software used to provide the App. Avatarify reserves all rights not expressly granted to You in this TOS. Subject to Avatarify's ownership rights, as between You and Avatarify, You retain all intellectual property rights in to the images, photos and other content provided by you that are modified or processed through the App and are otherwise generated through the use of the App (collectively, the "Content").
7. Claims of Copyright Infringement
If You believe in good faith that materials transmitted or created through the App infringe Your copyright, You (or Your agent) may send Avatarify a notice requesting that we remove the material or block access to it. Please provide the following information: (a) an electronic or physical signature of the owner (or person authorized to act on behalf of the owner) of the copyrighted work; (b) a description of the copyrighted work that You claim has been infringed upon and sufficient information for us to locate such copyrighted work; (c) Your address, telephone number, and e-mail address; (d) 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; and (e) 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.
If You believe in good faith that someone has wrongly filed a notice of copyright infringement against You, You may send Avatarify a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices should be sent to us via email at:
Avatarify, Inc.
Attention: DMCA Agent
[email protected].
Avatarify has the right to suspend or terminate the use of the App by anyone engaged in suspected repeated copyright infringement.
8. Indemnification
You agree to indemnify and hold Avatarify and its officers, directors, shareholders and employees harmless from and against any loss, costs, liabilities and expenses (including reasonable attorneys' fees) resulting from Your breach of this TOS, Your use of the App, Content, and any infringement by You of any intellectual property or other right of any third party.
9. Representations and Warranties
You represent and warrant that You are the sole owner of, or otherwise have all requisite rights and licenses to use, the Content. You warrant that the creation, modification or any other use of the Content does not infringe or violate any rights of any third party, including any intellectual property rights, data privacy rights, rights of publicity and privacy rights.
10. Termination
This TOS will continue in effect until terminated by either You or Avatarify as set out below. You may terminate this TOS at any time by ceasing Your access and use of the App. Avatarify may terminate this TOS and your right to access or use the App, with or without notice to you, for any reason, including suspected breach of this TOS by You. Upon any termination of this TOS, Sections 6, 7, 8, 9, 10, 11, 12 and 13 will survive.
11. Disclaimers; Limitation of Liability
THE APP IS PROVIDED TO YOU ON AN "AS-IS" AND "AS AVAILABLE" BASIS AND THE USE THEREOF IS AT YOUR SOLE RISK. AVATARIFY MAKES NO, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NONINFRINGEMENT, AND TITLE WITH RESPECT TO THE APP, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. AVATARIFY DOES NOT WARRANT THAT: (A) THE APP (OR THE RESULTS OBTAINED FROM THE USE THEREOF) WILL BE TIMELY, ERROR-FREE, SECURE OR UNINTERRUPTED; (B) THE APP MEET YOUR REQUIREMENTS; OR (C) ANY ERRORS OR MALFUNCTIONS IN THE APP WILL BE CORRECTED.
AVATARIFY SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR OTHER THEORY, FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES OR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, COST OF SUBSTITUTE PROCUREMENT, ARISING IN WHOLE OR IN PART FROM YOUR USE OF (OR INABILITY TO USE) THE APP, EVEN IF AVATARIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL AVATARIFY BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ANY CAUSES BEYOND ITS REASONABLE CONTROL. IF ANY OF THE FOREGOING LIMITATIONS ARE FOUND TO BE INVALID, AVATARIFY'S AGGREGATE LIABILITY FOR ALL CAUSES OF ACTION, DAMAGES, EXPENSES AND LOSSES OF ANY KIND AND NATURE WHATSOEVER SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
12. Governing Law; Forum
This TOS shall be governed by and construed in accordance with the internal laws of the United States and the State of California, without giving effect to its conflict of laws provisions, regardless of Your location. You agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in the New York, New York, and You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in New York, New York. The parties specifically disclaim application of the Convention on Contracts for the International Sale of Goods.
13. Misc.
If any provision of this TOS is found to be unlawful, void or for any reason unenforceable, that provision will not affect the validity and enforceability of any remaining provision and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties. This TOS, together with the Privacy Policy, constitute the entire agreement between Avatarify and You pertaining to any and all access and use of the App and supersede any and all prior or contemporaneous written or oral agreements between us and You pertaining thereto. No amendment or waiver of this TOS will be binding on Avatarify unless set forth in a writing expressly identifying this TOS and signed by an officer of Avatarify and You. Any caption, heading or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
14. Contact Us
If You have any questions regarding the use of the App or this TOS, please contact us at [email protected].
