Terms of service
TERMS OF USE
Last Updated: July 27, 2020
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY
AGREEMENT TO TERMS
This app offers services allowing you to create, edit, and perfect photos, create images, edit videos and share your creations through social media and email.
This Terms of Use (the "Agreement") is a contract you are entering into with the app author – so you should read through all of it. The app author can also make changes to this Agreement. If you are entering into this Agreement on behalf of an entity (such as your employer), you represent that you have full authority to bind such entity to this Agreement, and in such cases references to "you" and "your" shall mean that entity.
SERVICES AND CONTENT
Your Rights. Subject to the terms and conditions of this Agreement, you are given a personal license and right to access and use the applicable Services (and in the case of an App, to also install the App on your device) (collectively, the "Subscription"). This Subscription is nonexclusive, non-transferable, and non-sublicensable, and the Subscription only lasts while this Agreement remains in effect. As used herein, a "Paid Subscription" means a Subscription to any fee-based portions of the Services.
Additional Rules about Content. Your use of Service Content is also subject to the Content Rules and Policy specified in Schedule A below (the "Content Rules and Policy").
Prohibited Uses. As a condition to your Subscription, you agree not to engage in (or encourage or permit others to engage in) any of the Prohibited uses specified in Schedule B attached below (the "Prohibited Uses").
Restricted Access. The Services are delivered electronically, and shall be deemed accepted by you upon delivery. Some modules, tools, features, or other functionality (collectively, "Features") may only be available to Paid Subscriptions. Paid Subscriptions themselves shall also be subject to whatever limitations may be specified in the corresponding Paid Subscription plan or package (such as limitation on the number of authorised users, usage volume or duration).
Changes to the Services. The author reserves the right, from time to time and in its discretion, and without prior notice, to: (a) change any Features and/or other aspects (such as the design, layout, or availability) of the Services; (b) deactivate any Features, including without limitation deactivating any free Features and offering them only as part of a Paid Subscription (and vice - 2 - versa); and (c) stop supporting (or limit compatibility with) certain devices and operating systems, in which case your access to the Services on such devices or operating systems may be impaired. Where required by applicable law, we will notify you in advance (either via email, via your Account, and/or within the Services) in the event we decide to shut down or discontinue any App, Web Service, and/or the Services as a whole.
Reservation of Rights. For the avoidance of doubt, the Services are only licensed to you, and no title in them passes to you. Any rights not expressly granted herein are hereby reserved by the author and its licensors, and you are granted no other right or license in the Services, whether by implied license, estoppel, exhaustion, operation of law, or otherwise.
PAYMENT
Fees.Certain Services and Features are only offered under a Paid Subscription, and certain Service Content is only offered for payment (such as Premium Stock Content and certain other Stock Content). You agree to pay whatever fees and other charges are presented to you when you subscribe to a Paid Subscription or paid Service Content (collectively, the "Fees"). If the payment plan is on a recurring-subscription basis, you agree to pay the Fees in accordance with the applicable billing cycle ("Billing Cycle"). If you downloaded the App from the Apple Store, refunds are permissible in accordance with their refund policy; otherwise refunds are permissible in accordance with the refund policies that the author publishes. Except as stated in those policies, all Fees are non-refundable and non-cancellable. Moreover, amounts payable are exclusive of all applicable sales, use, consumption, VAT and other taxes, except for taxes based upon the author’s net income.
Payment Methods and Processing. Payments may be processed via the relevant App Marketplace, as well as any other third-party payment methods which we make available (such as via PayPal and certain supported payment cards). You must provide accurate billing information, and promptly update any changes to it (such as card numbers and expiry dates). If you are paying via credit or debit card, you represent that you are the authorised user of the card, and you authorise the author (and any third party payment processor) to collect payment from you, on a recurring basis (if applicable), and to take all other necessary billing actions. If payment is made via a third-party payment processor, you will also be subject to its terms and conditions (over which we have no control) – so carefully read those terms.
INTELLECTUAL PROPERTY
Services. All rights, title and interest (including without limitation all Intellectual Property Rights) in and to the Services is and shall remain exclusively owned by the author and/or its licensors. If you provide us with any suggestions or other feedback about the Services ("Feedback"), you agree that we may use such Feedback at our discretion, and without any restriction (e.g., for - 3 - research and development purposes, for commercial purposes etc.) or obligation to you.
The trademarks and branding (collectively, "Trademarks") displayed in the Services, as well as their associated goodwill, are and shall remain exclusively owned by the author and/or its licensors (the "Service Trademarks"). Some of those Service Trademarks may also be registered by their respective owners. You may not use or register any Trademark that is confusingly similar to any Service Trademarks, and you must refrain from any action that may dilute, tarnish, or damage Service Trademarks or their associated goodwill.
DMCA Copyright Policy. It is the author' policy to respect the rights of copyright owners, and we will respond to notices of copyright infringement in accordance with our DMCA Copyright Policy set forth below.
Definition of Intellectual Property Rights. "Intellectual Property Rights" shall mean any rights, titles, and interests (under any jurisdiction, whether protectable or not, and whether registered or unregistered) in and to any inventions, discoveries, works of authorship, domain names, software, algorithms, designs, databases, data, know-how, technology, and/or other intellectual property, and includes without limitation patents, copyright and similar authorship rights, personal rights (such as Moral Rights, rights of privacy, and publicity rights), architectural, building and location (and similar geography-based) rights, mask work rights, trade secret and similar
DISCLAIMER OF WARRANTIES
USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. WE AND OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, LICENSORS, AGENTS AND AFFILIATES DISCLAIM ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND GUARANTEES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET POSSESSION, TITLE, NON-INFRINGEMENT, OR THAT ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE. WE DO NOT MAKE ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE THAT:
THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR WILL MEET YOUR REQUIREMENTS IN ANY WAY;
THE SERVICES WILL BE FREE FROM MALWARE, COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS; AND/OR
THE CONTENT WILL BE ACCURATE, COMPLETE, RELIABLE, LAWFUL, OR NON-INFRINGING. NO ORAL OR WRITTEN REPRESENTATION, ADVICE OR STATEMENT MADE BY US OR ON OUR BEHALF, WHICH IS NOT EXPRESSLY CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION OF ANY KIND. ANY HOW-TO GUIDES OFFERED ARE FOR YOUR INFORMATION ONLY, AND YOU MAY NOT RELY ON THEM FOR ANY ACADEMIC, VOCATIONAL OR PROFESSIONAL CERTIFICATION.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AUTHOR SHALL NOT BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT FOR ANY:
INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, STATUTORY, INCIDENTAL OR CONSEQUENTIAL DAMAGES;
LOSS OF PROFIT, BUSINESS, ANTICIPATED SAVINGS, OR OPPORTUNITY;
LOSS OF, OR DAMAGE TO, ANY CONTENT, REPUTATION, OR GOODWILL; AND/OR
COSTS OR EXPENSES OF PROCURING SUBSTITUTE GOODS OR SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMBINED AGGREGATE LIABILITY OF ALL PARTIES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO HALF THE FEES YOU PAID US (IF ANY) IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) EVEN IF THR AUTHOR PARTIES HAVE BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, COSTS, OR EXPENSES; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT, TORT OR STATUTORY LIABILITY. HOWEVER, NOTHING IN THIS AGREEMENT SHALL LIMIT LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, OR FOR FRAUD, OR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED BY APPLICABLE LAW.
INDEMNIFICATION
You will indemnify and hold harmless each of the author from and against any losses, liabilities, damages, fines, penalties, costs, and expenses (including reasonable legal costs and attorney's fees) suffered or incurred by the author as a result of any breach by you under this Agreement and/or any violation by you of any law and/or the rights of any third party.
TERMINATION
Termination by the author. The author reserves the right, without notice and without liability, to suspend and/or terminate this Agreement at any time, whether for cause (for example if you breach this Agreement) or for convenience.
Termination by You. You may terminate this Agreement at any time, via the functionality offered or by cancelling your Account. In such cases, termination will take effect immediately, unless you have a current Paid Subscription in which case termination shall take effect at the end of the then-current Billing Cycle, and you will not be charged for the subsequent Billing Cycle.
Effect of Termination; Survival. Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities that accrued as of the effective date of termination. Upon termination of this Agreement: (a) the Subscription and access to the Services will terminate, and (if applicable) you must uninstall the App from your device; and (b) your Account and related access credentials shall be terminated, and you shall be responsible for backing up your Account Content.
GENERAL LEGAL TERMS
Entire Agreement. This Agreement (together with its Schedules) represents the entire agreement between the author and you with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements and understandings between you and the author with respect to such subject matter. You confirm that in entering into this Agreement you have not relied on any statement or representation not expressly set out in this Agreement, such as statements and explanations in any FAQs or other marketing material on the author’s website. The section headings in this Agreement are for convenience only and may not be used for interpretive purposes.
Agreement Modifications by the author. The author reserves the right, from time to time and in its discretion, to make changes to this Agreement within the Services, and/or notified to you via email or your Account. The effective date of the Agreement Modifications will be ten (10) days after posting the modified Agreement or notifying you of it, as described above, unless a different date is specified. If you do not agree to the Agreement Modifications, your sole remedy, and our sole obligation and liability, is for you to terminate this Agreement. Otherwise, your continued access or use of the Services shall constitute your acceptance of the modified Agreement.
Age Representation. You represent that you are of legal age in your jurisdiction to form a binding contract, but in any event at least thirteen (13) years old. Children under the age of thirteen (13) are not permitted to use any of the Services. If you are between thirteen (13) and eighteen (18) years old, you must review this Agreement with your parent or guardian, have him/her accept it on your behalf, as well as approve your use of the Services.
Language; Electronic Contract. The language of this Agreement is the English language only. You hereby irrevocably waive any law applicable to you requiring that the Agreement be localised to meet your language (as well as any other localisation requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records.
App Download from App Marketplace. If you are downloading the App from a third party app-distribution platform or marketplace, such as Apple's App Store, Google's Google Play, or the Amazon Appstore for Android (each, an "App Marketplace"), please be aware that the App Marketplace may have additional rules which also govern your use of the App.
Assignment. The author may assign this Agreement (or any of its rights and/or obligations hereunder) without your consent, without notice, and without any other restriction. the author may, from time to time and at its discretion, subcontract performance of its obligations under this Agreement (for example, hosting and processing of Web Services may be done by third party cloud service providers). This Agreement is personal to you, and you may not assign or transfer this Agreement (or any of your obligations or rights hereunder) without the author’ express prior written and signed consent. Any prohibited assignment shall be null and void. Subject to the foregoing, this Agreement shall bind and benefit each party and its respective successors and assigns (for example, the Moral Rights waiver and the Account Content License also benefit the author’ successors and assigns).
Severability. If any provision of this Agreement (for example, the provisions of Section 10 (Governing Law; Dispute Resolution) or Schedule C (Mandatory Arbitration)) is held by a court to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) you and the author agree that the court making such determination shall have the power to change the provision to make it legal, valid and enforceable and that most closely approximates the original intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction, and will be substituted with a valid, legal and enforceable provision that most closely approximates the original intent and economic impact of such provision.
Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy of a party under this Agreement shall be exclusive of any other right or remedy under this Agreement, at law or in equity.
Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by you, emails will be acceptable; for waivers by the author, the writing must be signed by an authorized representative of the author), and shall be valid only in the specific instance in which given.
Relationship of the Parties; Third Party Beneficiaries. No agency, partnership, joint venture or employment relationship is intended or created by this Agreement, and the relationship of the parties is solely that of independent contractors. Except as provided otherwise in this Agreement neither party intends that any third party will be a beneficiary of or entitled to rely on any part of this Agreement.
Data Backup. The Services are not intended to, and will not, operate as a data storage or archiving service, and you agree not to rely on the Services for the storage of any of your Account Content whatsoever. You are solely responsible and liable for the maintenance and backup of all your Account Content. You also acknowledge that certain Account Content (including without limitation personal information.
PROHIBITED USES
You must not do (or permit or encourage to be done) any of the following, in whole or in part: (a) copy, "frame" or "mirror" the Services; (b) sell, assign, transfer, lease, sublicense, or otherwise distribute or make available the Services to any third party (such as offering it as part of a timesharing or service bureau environment); (c) publicly perform, display or communicate the Services; (d) modify, adapt, arrange, or translate the Services; (e) decompile, disassemble, decrypt, reverse engineer, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organisation, file formats, non-public APIs, ideas, or algorithms) of the Services; (f) remove, alter, or conceal any copyright, trademark or other proprietary rights notices displayed in the Services; (g) circumvent, disable or otherwise interfere with security-related features of the Services, or publicly identify any security vulnerabilities in them; (h) make a derivative work of the Services, or use them to develop any service or product that is substantially similar to it; (i) store or transmit any robot, malware, Trojan horse, or similar malicious item (for example, by way of Account Content) intended (or that has the potential) to damage or disrupt the Services; (j) employ any hardware, software or technique to pool connections, devices or users that use the Services (sometimes referred to as 'virtualization', 'multiplexing' or 'pooling') in order to circumvent any limitations or conditions on the scope of your Subscription; (k) forge or manipulate identifiers in order to disguise the origin of any Account Content or impersonate any person or entity, or make any false statement pertaining to your identity or affiliation with any person or entity; (l) take any action that imposes (as determined in author’s discretion) an unreasonable or disproportionately large load on the servers or other cloud infrastructure which operate or support the Services, otherwise systematically abuse or disrupt the integrity of such servers or infrastructure, or send automated queries; (m) engage in any activity that constitutes or encourages conduct that constitutes a criminal offense, gives rise to civil liability or otherwise violates any applicable law, including without limitation laws governing privacy, defamation, spam, and copyright; (n) cause or launch any programs for the purpose of scraping, indexing, or otherwise data mining any portion of the Services, or use robots, crawlers and similar applications to collect and compile Content from the Services, or send data to or from the Services for the purposes of competing with the Services or in such ways that may impair the Services' functionality; (o) display or embed Content from the Services (including without limitation by any software, Feature, gadget or communication protocol), which alters the Content or its design; (p) collect or process personal information regarding the Services' users, without their prior explicit consent, or threaten or intimidate other users of the Services; (q) link to the Services from web pages or applications that contain pornographic Content or Content that encourages racism or wrongful discrimination; and/or (r) include in any Account Content information which may be considered as identifying a minor (or information enabling contact of minors), or which violates a person's privacy rights or publicity rights, which is threatening, defamatory, libelous, vulgar, violent, obscene or racially, ethnically or otherwise objectionable, or which constitutes unsolicited commercial communications ('spam') or pyramid schemes.
DMCA Copyright Policy
Removal of Content. It is the policy of the author to respect the legitimate rights of copyright owners, and we will respond to clear notices of alleged copyright infringement. Pursuant to the Digital Millennium Copyright Act (the "DMCA"), we have designated a Copyright Agent (as specified below) to receive notifications of claimed copyright infringement in connection with the Services. Please be advised that we enforce a policy that provides for the termination in appropriate circumstances of users of the Services who are repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide the Copyright Agent with the following information in accordance with the DMCA: (i) An electronic or physical signature of the person authorised to act on behalf of the owner of the copyright; (ii) A description of the copyrighted work you claim has been infringed; (iii) A description of where the material that you claim is infringing is located on the Services, with enough detail that we may find it. Providing URLs in the body of an email is the best way to help us locate content quickly; (iv) Your address, telephone number, and email address; (v) A statement by you that you have a good faith belief that the disputed use is not authorised by the copyright owner, its agent, or the law; and (vi) 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 authorised to act on the copyright owner's behalf.
Counter-Notification. If you believe that the material you posted was removed from the Services by mistake, and that you have the right to post the material, you may elect to send us a counter-notification. To be effective the counter-notification must be a written communication provided to our Copyright Agent that includes substantially the following (please consult your legal counsel or see the DMCA to confirm these requirements): (i) Your physical or electronic signature; (ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. Providing URLs in the body of an email is the best way to help us locate content quickly; (iii) A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (iv) Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which the Services may be found or accessed, and that you will accept service of process from the person who provided notification of infringement or an agent of such person. 3. Misrepresentations. Please note that under the DMCA (at 17 U.S.C. Section 512(f)) any person who knowingly materially misrepresents that material or activity is infringing or was removed or disabled by mistake or misidentification may be subject to liability. 4. Copyright Agent. Our agent for notice of claims of copyright infringement ("Copyright - 17 - Agent") can be reached as follows: bonnie@ceeindustries.com.au
CONTACT US
In order to resolve a complaint regarding the app or to receive further information regarding use of the app, please contact us at: hello@colourtone.com