THESE TERMS CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST MAGICAL AND ITS LICENSORS AND ITS SUPPLIERS TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST MAGICAL AND ITS LICENSORS AND ITS SUPPLIERS ON YOUR OWN BEHALF, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON YOUR OWN BEHALF, AND (3) YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO HAVE YOUR CLAIMS DECIDED BY A JUDGE OR JURY.
If you have any questions, comments or concerns about these Terms or the Services, please contact us at email@example.com.
We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time without notice. If the changes materially impact the Terms, we will use reasonable efforts to bring it to your attention by placing a notice on the Magical website, by sending you an email, and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to be bound by all of the changes.
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at firstname.lastname@example.org.
OVERVIEW OF THE SERVICE
About the Service.
Please see our website for further details on the features of the various Services offerings, which we will endeavor to improve and expand over time.
If you use the Services for business purposes, your use may be subject to certain terms and policies of your business organization, by which you agree to abide while using the Services. In addition, by identifying your business organization when registered or updating your user account, you agree that you have permission to register for the Services on behalf of your business organization and you give us permission to use such business organization’s name and logo (including any trademarked names or logos) and to identify such business on the Services, our website and when we market the Services to others.
The Services may integrate with other services on a number of platforms provided by third parties (“Third Party Platforms”). Please be aware that your activities on each of these Third Party Platforms may be subject to additional terms of service for that particular Third Party Platform, which are solely between you and such Third Party Platform, and you agree to not use the Services in any way that violates such terms of service. Please also note that because our Services integrate with Third Party Platforms, we cannot guarantee the services of such Third Party Platforms, and in particular any changes to such Third Party Platforms may affect how the Services operate, and in some cases, these changes may disrupt the Services. While we will endeavor to minimize any such disruptions, you acknowledge and agree that we are not responsible for the operations of such Third Party Platforms, and how changes to Third Party Platforms may affect the performance of or your use of the Services. Certain parts of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services are subject to those additional terms and conditions, which are incorporated into these Terms by this reference.
General Payment Terms. Magical may allow users to pay for access to certain features, products, or services (“Purchases”). When you make a Purchase we may allow payments through a variety of different methods including but not limited to debit card, credit card, and other online payment methods, as well as ACH or wire payments if you have agreed directly with the Company (“Payment Methods”). See Direct Billing section below. When you choose to make a Purchase, your Payment Method will be charged for the amount (and, if applicable, on the schedule) that was presented to you at the time of Purchase, plus any sales or similar taxes that may be imposed on that payment. You hereby authorize us to charge your Payment Method for those Purchases. You understand and agree that, by signing up for a paid version of the Services (or by purchasing any other feature, product, or service that we may make available through the services), you will be authorizing Magical, through our payment processor, to collect, store, transfer, and charge your Payment Method on file for the agreed upon amount of that transaction. See Direct Billing section below. If your primary Payment Method is determined to be expired, invalid, or otherwise not able to be charged, you agree that we may use a secondary Payment Method in your account, if available. We reserve the right to revoke access to any feature, product, or service that you have purchased in the event that we are unable to charge your Payment Method for the Purchase that you made. Charges paid by you are final and non-refundable, unless otherwise determined by Magical.
Automatic Renewal and Billing. Certain Magical features and functionality, including our Core and Advanced offerings, are only available to individuals who have Purchased a paid subscription (“Subscriptions”). Subscriptions will consist of a one-time charge, followed by automatically recurring charges (which will typically be monthly or yearly recurring charges). At the time you Purchase the Subscription, you will affirmatively select the cadence of your automatically recurring charges (which will typically be monthly or yearly recurring charges). By Purchasing a Subscription, you acknowledge that there is an initial and recurring automatic payment feature that will be charged to your designated Payment Method at the start of each recurring billing period on your elected Subscription plan, without further authorization from you until you have canceled your subscription (pursuant to the below) or wish to change your Payment Method (by selecting “Change Payment Method” under “Billing” once you have logged into your account). Your recurring billing period is the interval of time between each recurring billing date and corresponds to the term of your subscription. For purposes of these Terms, a “day” or “date” begins at 12:00 a.m. Pacific time and ends at 11:59 p.m. Pacific time of that same calendar day. To see your next Subscription renewal billing invoice date and amount, log in to your account and view your account details under “Billing”. Your non-termination of a Subscription reaffirms that we are authorized to charge your designated Payment Method for the applicable Subscription fees for the next recurring billing period.
Cancellation. You can cancel your Subscription (i) by logging into your account and selecting “Cancel Subscription” under “Billing” or (ii) by emailing email@example.com. To avoid being charged for your next recurring charge, you must cancel your Subscription at least twenty four (24) hours before the next-scheduled Subscription renewal billing invoice date (which, for the avoidance of doubt, you can view by logging into your account and accessing your account details under “Billing”), unless you have agreed with the Company to transact through ACH or wire payments, in which case you must cancel your Subscription at least thirty (30) days before the next-scheduled Subscription renewal billing invoice date. Once it starts, each recurring billing period is non-refundable. We do not refund or credit for partially used billing periods. Upon cancellation of your Subscription, you will no longer have access to the paid subscription Services, but you will maintain access to the unpaid version of the Services, which may contain certain restrictions on use and access.
Subscription Pricing Changes you understand that recurring Subscription prices may change in the future, provided that any pricing changes will impact the next recurring billing period. In the event of a price change, we will attempt to notify you in advance of the change by sending an email to the email address you have registered for your account. If you do not wish to accept a price change, you may cancel your Subscription in accordance with the instructions included in that email notice and in the “Cancellation” section above. If you do not timely cancel your Subscription, your Subscription will be renewed at the price in effect at the time of the renewal, without any additional action by you, and you authorize us to charge your designated Payment Method for these amounts. We will not be able to notify you of any changes in applicable taxes, if any.
Promotions and Discounts. Magical may offer discounted Subscriptions or other discounts or promotions (“Promotions”) from time to time, which may result in different amounts charged for the same or similar feature, product, or service. Any applicable sales and use taxes and services fees will be calculated based on the discounted Subscription value after the Promotion is applied. Certain Promotions may only be redeemed once you achieve a specified minimum fee threshold, and any sales or use taxes or service fees do not count towards achieving such threshold. Unless otherwise stated by us in writing, you may only use one Promotion at a time and cannot combine Promotions or any other discounted offers. You may not sell or transfer your Promotion. Promotions may also be limited to certain time periods as designated by us. We may also modify, extend, shorten, or cancel any Promotion at any time. If you violate these Terms, Magical reserves the right to cancel your Promotion.
REGISTRATION AND YOUR ACCOUNT
By completing the registration process for any given Services, you are agreeing to subscribe to the selected Services, subject to the terms and conditions of these Terms. You agree to provide Magical with accurate and complete registration information and to promptly notify Magical in the event of any changes to any such information.
You shall be solely responsible for the security and proper use of all user IDs, passwords or other security devices used in connection with the Services, and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to or used by any other person or entity. You shall immediately inform Magical if there is any reason to believe that a user ID, password or any other security device issued by Magical has or is likely to become known to someone not authorized to use it, or is being or is likely to be used in an unauthorized way. Magical reserves the right (at its sole discretion) to request that you change your password(s) in connection with the Services, and you shall promptly comply with any such request.
You are solely responsible for all activity in connection with access to the Services through your account or using your password, and for the security of your computer systems, and in no event shall Magical be liable for any loss or damages relating to such activity.
CONSENT TO ELECTRONIC COMMUNICATIONS
For users located outside of the European Economic Area (EEA)
Your registration to use the Site and/or Services constitutes your consent to receive email communications from Magical, including messages regarding customer service issues and other matters. You may opt not to receive email correspondence, other than technical notifications and email regarding issues related to your account and your use of the Services, at any time by following the “unsubscribe” link included in the email messages.
For users located in the European Economic Area (EEA)
We only send marketing communications to users located in the European Economic Area (EEA) with your prior consent, and you may withdraw your consent at any time by clicking the “unsubscribe” link found within Magical emails and changing your contact preferences. Please note you will continue to receive transactional messages related to our Services, even if you unsubscribe from marketing emails.
LINKS TO THIRD PARTY SITES
References on the Services to any names, marks, products, or services of third parties, or links to third party sites or information are not an endorsement, sponsorship, or recommendation of the third party, its information, products, or services. We are not responsible for the content of any third party linked site or any link contained in any linked site. Your use of a third-party site linked from our Services is at your own risk and will be governed by such third party's terms and policies.
You represent, warrant, and agree that you will not use the Services, including without limitation contributing any Content or User Submission (each of those terms is defined below), or otherwise use the Services or interact with the Services in a manner that:
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including Magical’s) rights.
You understand that Magical owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services.
The Services may allow you to copy or download certain Content; please remember that just because this functionality exists, doesn’t mean that all the restrictions above don’t apply – they do!
You hereby grant Magical a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to provide and operate the Services. You agree that the license you grant is royalty-free, perpetual, irrevocable, and worldwide. In addition, with respect to any Templates, any you grant Magical a royalty-free, perpetual, irrevocable and worldwide license to make, have made, use, sublicense, import, display, perform, distribute, transmit, copy, create derivative works of and otherwise exploit any Templates you create while using the Services, including by making such Templates available for use and modification by other Magical users.
You understand and agree that Magical, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services.
If you believe any Content infringes your copyright, you should send written notice of copyright infringement to our designated copyright agent at the address given below. Your notice must meet the requirements of the Digital Millennium Copyright Act (as required under 17 U.S.C. 512) by providing the following information:
Our designated copyright agent for notice of claims of copyright infringement on the Services may be reached at the following email: firstname.lastname@example.org.
If you believe that your content that was removed (or to which access was disabled) pursuant to a Digital Millennium Copyright Act notice we received is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to law, to post and use the content in your content, you may send a counter-notice containing the following information to the Copyright Agent at the address listed above:
If a counter-notice is received by the Copyright Agent, Magical may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Magical’s sole discretion.
MODIFICATIONS TO THE SERVICE
We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason, in our sole discretion, and without notice.
Magical is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Upon deactivation of your account for any reason, you shall immediately pay to us all of your outstanding unpaid invoices. Magical has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to deactivate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s safety or security, or otherwise harmful to the rights or property of Magical.
If you have deactivated your account by mistake, contact us immediately at email@example.com – we will try to help, but unfortunately, we can’t promise that we can recover or restore anything.
Neither Magical nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services. The Services are provided “AS IS” and without any warranty of any kind from Magical or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY MAGICAL (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL MAGICAL (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO MAGICAL IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, (C) ANY ACTS, OMISSIONS, OR FAILURES OF A THIRD PARTY, OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
To the fullest extent allowed by applicable law, You agree to indemnify and hold Magical, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account or claims by your customers arising from their use of the Services through your products), (b) your violation of these Terms, or (c), your use of the Services that in any way that violates the terms of services of any Third Party Platform. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Magical’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
APPLICABLE LAW; ARBITRATION
These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND MAGICAL ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Magical may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. While the Agreement is in force, Magical may include your company logo and profile on any web site it maintains for customers of Magical’s services. You consent to publication of your company’s name by Magical as a Magical customer. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Magical agree that these Terms (including any applicable Order Form(s)) are the complete and exclusive statement of the mutual understanding between you and Magical, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Magical, and you do not have any authority of any kind to bind Magical in any respect whatsoever. You and Magical agree there are no third party beneficiaries intended under these Terms.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, users of the Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
You may contact Magical at: firstname.lastname@example.org
CONTACT AND VIOLATIONS
Please contact us with any questions regarding these Terms. Please report any violations of the Terms by or emailing email@example.com.