For purposes of the TOS, the following defined terms shall have these meanings: (A) “Service(s)” shall mean any and all services on, or provided by, the Sites, whether or not such services are also provided or delivered by other means or media such as software or wireless devices; (B) “Sites” shall mean these sites; (C) “Sites Content” shall mean any and all human readable patent audio and/or visual elements of the Sites, created or owned by MM, or third parties, including, without limitation, any text, graphics, images, illustrations, photographs, animations, video, audio or audiovisual works, designs, logos, information, and other content made available through the Sites; (D) “Sites Code” means any and all underlying elements of the Sites, including without limitation, source code, script, object code, software, computer programs, and other sets of statements and instructions contained in the underlying Sites; (E) “Account” means any account created by you, through a registration process for the purpose of accessing or using certain Services.
These terms and conditions govern your use of the Sites, the Sites Content or Sites Code; by using any of the Sites, the Sites Content or Sites Code, you accept these terms and conditions in full. If you disagree with these terms and conditions or any part of these terms and conditions, you must not use any of the Sites, the Sites Content or Sites Code.
You must be at least 18 years of age to use the Sites, the Sites Content or Sites Code. By using the Sites, the Sites Content or Sites Code and by agreeing to these terms and conditions you warrant and represent that you are at least 18 years of age.
LICENSE TO USE THE SITE
MM grants you a non-exclusive, non-transferable, limited right and license to access, use and privately display the Sites and the Sites Content as described herein for your personal use only, by way of one (1) computer connected to the Sites over the Internet, provided that you comply fully with these TOS. You may “cache” pages of the Sites for the sole purpose of increasing the speed and efficiency at which you access the Sites. Any other copy or use of a portion of the Sites is not authorized, will be a violation of these TOS and will constitute a copyright violation. You shall not interfere, or attempt to interfere, with the operation of the Sites in any way through any means or device, including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or any other means expressly prohibited by any provision of these TOS or by law.
You must not:
Republish material from the Sites, the Sites Content or Sites Code (including republication on another website); sell, rent or sub-license material from the Sites, the Sites Content or Sites Code
Show any material from the Sites, the Sites Content or Sites Code in public
Reproduce, duplicate, copy or otherwise exploit material on the Sites, the Sites Content or Sites Code for a commercial purpose
Edit or otherwise modify any material on the Sites, the Sites Content or Sites Code
Redistribute material from the Sites, the Sites Content or Sites Code
Access to certain areas of the Sites, the Sites Content or Sites Code is restricted. MM reserves the right to restrict access to other areas of the Sites, the Sites Content or Sites Code, or indeed the entire websites, at MM’s discretion.
If MM provides you with a user ID and password to enable you to access restricted areas of the Sites, the Sites Content or Sites Code or other content or services, you must ensure that the user ID and password are kept confidential.
MM may disable your user ID and password in MM sole discretion without notice or explanation.
In these terms and conditions, “your user content” means material (including without limitation text, images, audio material, video material and audio-visual material) that you submit to the Sites, the Sites Content or Sites Code, for whatever purpose.
You grant to MM a worldwide, irrevocable, non-exclusive, royalty-free license to use, reproduce, adapt, publish, translate and distribute your user content in any existing or future media. You also grant to MM the right to sub-license these rights, and the right to bring an action for infringement of these rights.
Your user content must not be illegal or unlawful, must not infringe any third party’s legal rights, and must not be capable of giving rise to legal action whether against you or MM or a third party (in each case under any applicable law).
You must not submit any user content to the websites that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.
MM reserves the right to edit or remove any material submitted to the Sites, the Sites Content or Sites Code or stored on MM’s servers, or hosted or published upon the the Sites, the Sites Content or Sites Code.
Notwithstanding MM’s rights under these terms and conditions in relation to user content, MM does not undertake to monitor the submission of such content to, or the publication of such content on any of the Sites, the Sites Content or Sites Code.
The Sites, the Sites Content or Sites Code are provided “as is” without any representations or warranties, express or implied. MM makes no representations or warranties in relation to the Sites, the Sites Content or Sites Code or the information and materials provided on the Sites, the Sites Content or Sites Code.
Without prejudice to the generality of the foregoing paragraph, MM does not warrant that:
The Sites, the Sites Content or Sites Code will be constantly available, or available at all
The information on the Sites, the Sites Content or Sites Code is complete, true, accurate or non-misleading.
Nothing on the Sites, the Sites Content or Sites Code constitutes, or is meant to constitute, advice of any kind. If you require advice in relation to any legal, financial or medical matter you should consult an appropriate professional.
CHANGES TO SITE AND/OR TERMS OF SERVICE
CHANGES IN SITE OWNERSHIP
OWNERSHIP OF TRADEMARKS, COPYRIGHTS, INTELLECTUAL PROPERTY
The Sites, Sites Content, Sites Code, and all copyrights, trademarks, service marks, trade names and all other intellectual property or property rights therein are proprietary to MM and are owned by MM and/or its licensors and content providers, and are protected by applicable domestic and international copyright laws. Unless expressly permitted in writing by MM, you shall not copy, capture, reproduce, perform, transfer, sell, license, modify, manipulate, create derivative works from or based upon, republish, upload, edit, post, transmit, publicly display, frame, link, distribute, or exploit in whole or in part the Sites, the Sites Content or Sites Code, or otherwise use the Sites, Sites Content or Sites Code on any other web site, other networked computer environment, or in any medium now known or hereafter developed (each, an “Unauthorized Use”). Any Unauthorized Use constitutes an infringement of the copyrights and other proprietary rights of MM and/or its licensors and content providers and constitutes a violation of these TOS. Any violation of copyright laws may be subject to severe civil and criminal penalties.
From time to time, and at its sole discretion, MM may make available to users certain software that may be accessible or downloaded from these Sites. In the event that you access or download software from any of these Sites, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the “Software”) are licensed to you by MM or a MM-approved third party software provider (“Third Party Provider”). MM does not transfer title to the Software to you. You own the medium on which the Software is recorded, but MM and/or the Third Party Provider retain full and complete title to their respective Software, and all intellectual property rights therein. You may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. Furthermore, your use of any Software of a Third Party Provider shall be subject to the terms and conditions set forth by such Third Party Provider and any applicable license agreement for its Software. Software from this Site is further subject to United States export controls. No software from these Sites may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Iran, Iraq, North Korea, Sudan, Syria, or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
You hereby indemnify MM and undertake to keep MM indemnified against any losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by MM to a third party in settlement of a claim or dispute on the advice of MM’s legal advisers) incurred or suffered by MM arising out of any breach by you of any provision of these terms and conditions, or arising out of any claim that you have breached any provision of these terms and conditions.
MM is pleased to hear from its customers and welcomes your comments regarding MM products and services, including these Sites. Unfortunately, however, MM’s long-standing company policy does not allow it to accept or consider creative ideas, suggestions, or materials. While we value your feedback, we request that you be specific in your comments regarding our services and products, and that you not submit any creative ideas, suggestions, or materials. It is the intent of this policy to avoid the possibility of future misunderstandings when projects developed by MM’s or its affiliates’ professional staff might seem to others to be similar to their own creative work. You agree to indemnify MM for any and all claims, damages, losses, and causes of action arising as a result of your failure to comply with the TOS.
REGISTRATION AND ACCEPTANCE OF TERMS
In consideration for your use of the Services, you agree to (i) provide accurate, complete and true information about yourself as may be required on any registration form for Services (your “Registration Information”) in order to create your Account, and (ii) maintain and update, as applicable, your Registration Information with current and complete information. Users who provide inaccurate, false, or non-current Registration Information may, at MM’s sole discretion, have their Accounts suspended or terminated, and may be permanently banned from using any current or future Services.
As part of your Account, you will be responsible for creating, and maintaining the confidentiality of, your Log-In MM (Email address) and password. We also urge you to memorize your password or keep it in a secure place, away from the rest of your Account information, as sharing your password with others may lead to unauthorized access to your Account and the information therein. You agree that you will (i) immediately notify MM of any unauthorized use of your Account, and (ii) ensure that you properly exit all Services at the completion of your use session. MM shall have no liability for any loss or damage arising from your use of an Account, the Site or any Service, or your failure to comply with these requirements.
We are entitled to rely upon Customer Information Sheets (CIS) that are provided to us in order to update an account. The customer agrees to indemnify and hold harmless MM for anything resulting from that act.
MM sites may frame, and/or contain links to or advertisements about, non-MM Web sites. Other sites may also reference, advertise, or link to MM sites. MM does not endorse or sponsor other Web sites and is not responsible for the content of such sites. MM expressly disclaims any statements or assertions made on non-MM Web sites, and denies all liability associated with your use of, and the content on, such other sites and advertisements.
NON-UNITED STATES RESIDENTS
MM makes no representation that the Sites Content, including merchandise offered for sale on the Sites, and their copyrights, trademarks, patents, and licensing arrangements, are appropriate or available for use in locations other than the United States of America. Those who choose to access the Sites from locations outside of the U.S.A. do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent local laws are applicable. With respect to shipments of merchandise to consumers, wherever they may reside, title to the merchandise and risk of loss shall pass to the buyer upon delivery of the merchandise to the common carrier, including import or customs duties and taxes.
The Sites are controlled and operated by MM from its offices within the State of Delaware, United States of America. Use of this Site constitutes your consent and submission to service of process under applicable United States or Delaware law and to personal jurisdiction in a court of competent jurisdiction in the State of Delaware for the purposes of any legal action or claim pertaining to these Terms of Service, or arising from the use of your Account and/or any MM Site or Service.
You understand and agree that MM may, in its sole discretion and at any time, terminate your password, Account, or use of any Services, and discard and remove any and all Submissions submitted or posted by you to any MM Site or Service, for any reason.MM may also, in its sole discretion and at any time, discontinue any Sites or Services or limit or restrict any user access thereto, for any reason. You understand and agree that MM may take any one or more of these actions without any notice to you, prior or otherwise. Should MM take any of these actions, it may, in its sole discretion, immediately deactivate and/or delete any or all information about and concerning your Account, including your Registration Information and Submissions.
If the agency relationship is cancelled or terminated in any way, by either party, or by a status of forfeit, void or other terminal disposition of the entity with the State you understand and agree that MM shall in its sole discretion return, refuse or securely destroy any service of process or mail that is delivered to this address on behalf of the entity. For the purpose of efficiency so as to control costs for all of our clients, credit balances of less than $5 will be written off and removed from any inactive account.
You understand and agree that MM shall not have any liability to you or any other person for any termination of your access to any Services and/or the removal of information concerning your Account and/or the delivery of any correspondence whatsoever to this address on behalf of your entity upon cancellation or termination of the publisher’s / marketer’s relationship.
THE SITES, SITES CONTENT, SITES CODE, SERVICES, AND THE SOFTWARE, IF APPLICABLE, ARE PROVIDED “AS IS” “WITH ALL FAULTS” AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE, AND NON-INFRINGEMENT. MM DOES NOT WARRANT THAT THE AVAILABILITY OF OR THE FUNCTIONS CONTAINED IN THE SITES, SITES CONTENT, SITES CODE, SERVICES OR SOFTWARE, WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THESE SITES, SITES CONTENT, SITES CODE, THE SERVER THAT MAKES THEM AVAILABLE, OR THE SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITES, SITES CONTENT, SITES CODE, SOFTWARE OR SERVER DO NOT VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON. MM DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITES, THE SITES CONTENT, THE SITES CODE, THE SERVICES OR THE SOFTWARE, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT MM) ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITES, SITES CONTENT, SITES CODE, SERVICES, AND SOFTWARE, AS WELL AS THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION IF THERE ARE ANY DEFECTS. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL MM BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITES, SITES CONTENT, SITES CODE OR THE SOFTWARE, EVEN IF MM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WHILE MM TAKES PRECAUTIONS AGAINST SECURITY BREACHES, NO WEB SITE OR INTERNET TRANSMISSION IS COMPLETELY SECURE, AND AS SUCH, MM SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM UNAUTHORIZED ACCESS, HACKING, DATA LOSS, OR OTHER BREACHES THAT MAY OCCUR. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL MM’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU TO MM, IF ANY, FOR ACCESSING THESE SITES.
GOVERNING LAW; ARBITRATION
These Terms of Service shall be construed and enforced in accordance with the laws of the State of Delaware without regard to the choice of law principles thereof. You agree that any and all disputes or controversies of any nature between them arising at any time shall be determined by binding arbitration in accordance with current Delaware civil arbitration practice before a single neutral arbitrator (“Arbitrator”). The Arbitrator shall be an attorney or retired judge with at least ten (10) years experience and shall be mutually agreed upon by you and MM (collectively, “the parties”). If the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by two (2) Delaware attorneys, one chosen by each party. The fees of the Arbitrator shall be borne equally by the parties, provided that the Arbitrator may require that such fees be borne in such other manner as the Arbitrator determines is appropriate.
Nothing in this paragraph shall prevent either party from seeking interlocutory and/or injunctive relief from a court of competent jurisdiction pursuant to the preceding paragraph.
THE PARTIES HEREBY WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ALL CLAIMS AND ISSUES ARISING OUT OF OR RELATING TO THIS AGREEMENT WHETHER SOUNDING IN CONTRACT OR TORT, AND INCLUDING ANY CLAIM FOR FRAUDULENT INDUCEMENT THEREOF
If any provision of the TOS shall be held unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions.
COMPLIANCE WITH LAWS
You agree to comply with all applicable laws, rules and regulations in connection with your activities under this TOS, including without limitation the applicable regulations of the U.S. Department of Commerce and the United States Export Administration Act, as amended to assure that the Sites Content, Sites Code, and the Software are not exported in violation of the United States laws.
STATEMENT REGARDING TERMS OF SERVICE
Magic Masterminds is in business to serve your publishing and marketing needs. We never want to lose sight of this primary purpose. The litigious nature of a very small minority of persons in the marketplace necessitates our having the foregoing legalese notice so that we can focus on serving you with the courtesy and professionalism you have come to expect from Magic Masterminds and not to allow our efforts to be distracted by this litigious minority.
Effective Date: April 1, 2016