Last Updated: September 24, 2009
WELCOME TO BEFUNKY.COM WHICH IS OWNED AND OPERATED BY BEFUNKY, INC. ("BEFUNKY" "WE," "US," OR "OUR"). PLEASE READ THESE TERMS OF SERVICE (THESE "TERMS") CAREFULLY. BY ACCESSING OR USING THE WEB SITE LOCATED AT WWW.BEFUNKY.COM (THE "SITE") OR OUR SERVICES (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY THESE TERMS AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE HEREIN. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS, YOU MAY NOT USE THE SITE OR THE SERVICES. WE SUGGEST YOU PRINT A COPY OF THESE TERMS FOR YOUR RECORDS.
If you are using the Site or the Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity's behalf, and that such entity agrees to indemnify you and BeFunky for violations of these Terms. Nothing in these Terms will be deemed to confer any third party rights or benefits.
Updates to Terms of Service
We reserve the right to change or modify any provisions of these Terms and any policies or guidelines governing your use of the Site and/or the Services, at any time in our sole discretion and without liability to you. Any such changes or modifications will be effective immediately upon posting of revisions on the Site. Your continued use of the Site or the Services following the posting of such changes or modifications constitutes your acceptance thereof. Therefore, you should frequently review these Terms and all applicable policies or guidelines on the Site in order to understand the terms and conditions applicable to your use of the Site and the Services. If you do not agree to any changes or modifications to these Terms or to any applicable policies or guidelines on the Site, your sole recourse is to stop using the Site and the Services.
Description of Services and Accounts
When you set up an account with BeFunky, you may upload a photo (a "Raw Photo") to the Site and use the BeFunky photo effects available via the Site to alter your Raw Photo (the "Services"). A Raw Photo that has undergone the BeFunky photo effects is a "BeFunky Image".
BeFunky offers two different service accounts:
1.If you select the "Basic Account", you may (i)use the BeFunky photo effects available via the Site to alter your Raw Photos, (ii) distribute your BeFunky Images to others and(iii)
2.Display your BeFunky Images on other Web sites; including but not limited to, social networking sites such as Facebook, MySpace and LinkedIn.
3.You may not sell or otherwise commercially benefit from your BeFunky Images.
1.If you select the "Premium Account" and pay the Premium Account fees, you may: (i) use the BeFunky photo effects available via the Site 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, MySpace and LinkedIn; and (iv) sell or otherwise commercially benefit from your and/or others' BeFunky Images.
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.
Account Fees & Further Account Details
1.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.
2.BeFunky will not be obligated to issue any refunds for any fees charged to your Credit/Debit Card/PayPal Account.
You represent and warrant that you:
1.Are authorized to use and have fees charged to the credit card number, debit card number or paypal account you provide via the Site.
2.You are authorized to use, upload, modify and create derivative works of all Raw Photos you upload to the Site.
3.You are authorized to distribute and display all BeFunky Images you create via the Site.
4.All of your registration and account information is true, accurate and complete.
5.You will maintain the security of your password.
6.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 the Site, BeFunky has the right to use your BeFunky Image: (i) anywhere on the Site (including, but not limited, displaying your BeFunky Image on BeFunky's Editors Choice page); (ii) in BeFunky's marketing and promotional materials; and (iii) as otherwise elected by BeFunky.
MinorsIn order to create an account, you must be 13 years of age or older. If children between the ages of 13 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 13 years of or older.
Raw Photo and Content Policy
BeFunky respects your rights and does not wish to censor any Raw Photos, text and other materials (collectively "Content") you may use in connection with the Site and/or the Services. BeFunky has established the rules set forth below with respect to Content. Please note that these rules do not create any third party rights or create any private right of action, but may be enforced solely by BeFunky in its sole discretion. BeFunky may review, but does not have the obligation to review any Content. The decision by BeFunky not to take action to enforce these rules in a particular instance will not be considered a waiver of any right to do so in the future or in other situations.
By using the Site and the Services, you acknowledge and agree that:
1.All Content that you posted on, transmitted through, or linked from the Site, is your sole responsibility.
2.Under no circumstances will BeFunky be liable in any way for any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise made available via the Site.
3.If you post public Content to the Site, unless we indicate otherwise, you grant BeFunky and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content solely in connection with: (i) providing and promoting the Site and/or the Services; and/or (ii) exercising the rights granted in these Terms. You grant BeFunky and its affiliates and sublicensees the right (but, not the obligation) to use the name that you submit in connection with a BeFunky Image (only if you have elected to make such BeFunky Image public on the Site or by the nature of your service account your BeFunky Image is deemed public on the Site).
4.You may not upload, publish, post, distribute or disseminate any Content that defames, abuses, harasses, stalks, threatens or otherwise violates the legal rights (such as rights of privacy and publicity) of others.
5.You may not upload, publish post, distribute or disseminate any Content that is otherwise deemed as pornographic and/or obscene by BeFunky. This includes, but is not limited to, commercial pornography, pedophilia, incest, bestiality, child pornography or anything similar that violates any applicable laws. BeFunky will report any evidence of child pornography along with all known user identification and information to the relevant law enforcement agencies.
6.You may not upload, publish, post, distribute or disseminate any Content that promotes hatred towards groups based on race or ethnic origin, religion, disability, gender, age, and sexual orientation/gender identity.
7.You may not upload, publish, post, distribute or disseminate any Content that impersonates or is intended to impersonate others in a manner that is intended to mislead or does mislead or confuse others.
8.You may not upload, publish, post, distribute or disseminate any Content that is protected by intellectual property laws (or by rights of privacy and/or publicity) unless you own or control the rights thereto or have received all necessary consents.
9.You may not upload, publish, post, distribute or disseminate any files that contain viruses, malware, malicious codes, corrupted files, or any other similar software or programs that may damage the operation of the Site.
10.You may not falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of Content that is uploaded, downloaded, published, posted, distributed or disseminated.
11.You may not use the Site to harvest or otherwise collect information about others, including e-mail addresses, without their consent.
12.You may not upload, publish, post, distribute or disseminate any unauthorized private, confidential and personal information about others.
13.You may not upload, publish, post, distribute or disseminate any Content that is used for unlawful purposes or for the promotion of dangerous and illegal activities.
14.Your use of the Site and all Content you posted on, transmitted through or linked from the Site is in compliance with the rules set forth in these Terms and all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from your country of residence and all export control laws.
15.You may not use the Site or the Services in any manner that could damage, disable, overburden, impair the Site or the Services or interfere with any other user's use and enjoyment of the Site or the Services.
The Site and all content and other materials on the Site, including, but not limited to, the BeFunky effects, our logo and all designs, text, graphics, logos, icons, images, photographs, audio clips, digital downloads, data compilations, software and the selection and arrangement thereof (collectively, the "Materials") are our property or that of our licensors or users and are protected by United States and/or international copyright laws.
BeFunky, the BeFunky logo and any other product or service name or slogan contained in the Site are trademarks of BeFunky and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of BeFunky or the applicable trademark holder. You may not use any metatags or any other "hidden text" utilizing "BeFunky" or any other name, trademark or product or service name of BeFunky without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of BeFunky and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.
Limited License and Restrictions
We grant you a limited, non-sublicensable, non-exclusive and revocable license to access and make use of the Site and the Materials solely in accordance with, and subject to, these Terms and any other of our policies as posted on the Site. Except as otherwise expressly permitted by these Terms, you may not:
(i) collect, use, copy or distribute any portion of the Site or the Materials; (ii) resell, publicly perform or publicly display any portion of the Site or the Materials; (iii) modify or otherwise make any derivative uses of any portion of the Site or the Materials; (iv) use any "deep-link," "page-scrape," "robot," "spider" or other automatic device, program, algorithm or methodology which perform similar functions to access, acquire, copy, or monitor any portion of the Site; (v) use the Site in a manner which results in the depletion of Web site infrastructural resources; (vi) download (other than page caching) any portion of the Site, the Materials or any information contained therein; or (vii) use the Site or the Materials other than for their intended purposes.
Third Party Sites and Content
We may host or provide links to products, Web pages, Web sites and other content of third parties ("Third Party Sites and Content"). The inclusion of any link or the hosting of any content is provided solely as a convenience to our users, including you, and does not imply affiliation, endorsement, approval, control or adoption by us of any Web site or any information or content contained therein. We make no claims or representations regarding, and accept no responsibility for such Third Party Sites and Content, or for the quality, accuracy, nature, ownership or reliability thereof. Users, including you, may use these links and the Third Party Sites and Content contained therein at their own risk. When you leave the Site, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Web site to which you navigate from the Site.
Advertisements and Promotions; Third Party Products and Services
We may run advertisements and promotions from third parties on the Site or may otherwise provide information or links to third party products or services on the Site. Your business dealings or correspondence with, or participation in promotions of our advertisers and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. We are not responsible or liable for any loss or damage of any sort incurred as a result of any such dealings or promotions or as the result of the presence of such third party advertisers or third party information on the Site.
Disclaimer of Warranties
UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING, THE SITE, THE MATERIALS AND ANY SERVICES OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE ARE PROVIDED TO YOU ON AN "AS IS" OR "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND. WE DO NOT WARRANT THAT THE SITE, THE MATERIALS OR ANY SERVICES OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE AVAILABILITY, RELIABILITY OR SECURITY OF THE SITE OR THE SERVICES. UNLESS OTHERWISE EXPRESSLY SET FORTH IN WRITING, WE DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SITE, THE MATERIALS AND ANY SERVICES OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING: (I) ANY AND ALL WARRANTIES OF MERCHANTABILITY; (II) ANY AND ALL WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT WE KNEW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE AWARE OF ANY SUCH PURPOSE); (III) ANY AND ALL WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE; AND (IV) THAT THE SITE, THE MATERIALS AND ANY SERVICES OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE WILL OPERATE WITHOUT INTERRUPTION OR ERROR. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE RELIED ON NO WARRANTIES. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAILS OF THEIR ESSENTIAL PURPOSE.
Limitation of Liability
IN NO EVENT WILL BEFUNKY BE LIABLE TO YOU OR ANY THIRD PARTY FOR LOSS OF REVENUE, LOSS OF PROFITS, OR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE MATERIALS AND ANY SERVICES OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THE SITE, THE MATERIALS AND ANY SERVICES OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE EXCEED THE AGGREGATE OF THE NET AMOUNTS RECEIVED BY US FROM YOU, IF ANY, FOR SOLELY YOUR ACCESS TO OR USE OF THE SITE (NOT YOUR PAYMENT FOR ANY SERVICES OR PRODUCTS PROVIDED BY US). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. CERTAIN LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Indemnification and Release
You will indemnify, defend and hold us and our investors, officers, directors, affiliates, subsidiaries, licensors, partners, licensees, consultants, contractors, agents, attorneys, advertisers and employees (collectively, the "Indemnified Parties") harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney and expert fees, costs, penalties, interest and disbursements) resulting from any claim (including third party claims), suit, action, or proceeding against a Indemnified Party, whether successful or not, resulting from or arising in connection with: (i) your use of the Site, the Materials and/or the Services; (ii) your conduct; (iii) any breach by you of these Terms (including, but not limited to, any breach of any of your representations or warranties); and/or (iii) any Content you upload to, posted on, create on, transmitted through or linked from the Site.
Notwithstanding any terms to the contrary in these Terms, we reserve the right, without notice, without liability to you and in our sole discretion, to terminate any of your rights under these Terms (including, but not limited to, your right to use the Site and the Services) and to block or prevent your access to and use of the Site and the Services for any or no reason.
Notwithstanding any terms to the contrary in these Terms, BeFunky may choose to electronically deliver all communications with you, which may include: (i) email to your email address indicated in your communications with BeFunky or upon registration with the Site; or (ii) posting messages that are displayed to you when you log in to or access the Site. BeFunky's electronic communications to you may transmit or convey information about action taken on your request, portions of your request that may be incomplete or require additional explanation, any notices with respect to modifications to these Terms, any notices required under applicable law and any other notices. You agree to do business electronically with BeFunky, and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned provided electronically satisfies any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received the day of receipt as evidenced by such email.
Notices and Procedure for Making Claims of Copyright Infringement
If you believe that anything on the Site infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below.
Name of Agent Designated to Receive Notification of Claimed Infringement:__________________________________
Address of Designated Agent to Which Notification Should be Sent:c
Telephone Number of Designated Agent:__________________________________
Facsimile Number of Designated Agent:__________________________________
E-Mail Address of Designated Agent:email@example.com
To be effective, the notification must be a written communication that includes the following:
-A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
-Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
-Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
-Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
-A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
-A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We may give notice of a claim of copyright infringement to our users by means of a general notice on the Site, electronic mail to a user's email address in our records, or by written communication sent by first-class mail to a user's address in our records.
In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable law, BeFunky has adopted a policy of terminating, in appropriate circumstances and at the sole discretion of BeFunky, account holders who are deemed to be repeat infringers. BeFunky may also at its sole discretion limit access to the Site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe there is a violation of these Terms and you would like to report it to us, please direct the information to firstname.lastname@example.org. Any reports of violations you submit to us, including your identity, may not be kept confidential. In response to your report, we may take actions in accordance with these Terms or other applicable agreements between us and the alleged violator of the Terms, and may pursue other remedies available under all applicable local, state, federal or international laws, regulations, rules, orders and other requirements, now or hereafter in effect. However, we are under no obligation to respond to any reports we receive. Please note that a personal reply to reports you submit to us may not always be possible.