MAGIC MIRROR Terms and Conditions
Effective Date: December 3, 2018
- Our Terms
- Welcome to MAGICMIRROR! MAGICMIRROR provides a platform for dating, making friends, reading content, or just chatting with the community for millennial people worldwide.
- IMPORTANT — THIS AGREEMENT (“AGREEMENT” or “TERMS”) IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” or “YOUR”) AND FRIENDING LLC. HEREINAFTER “FRIENDING,” “MAGICMIRROR,” “WE”, “US” OR “OUR”) THAT sets forth the legal terms and conditions for your access to and use of https://magicmirror.co and any other website owned and operated by FRIENDING (the “Website(s)” OR “site(s)”) and ANY FRIENDING software, INCLUDING ANY FRIENDING mobile applications (the “APP(s)”) or other services offered by FRIENDING from time to time and other PRODUCTS OR services offered BY third parties USING FRIENDING functionality (collectively, the website(s), App(s) and services are referred to as “Service(s)”).
- PLEASE BE AWARE THAT SECTION 14 OF THESE TERMS OF SERVICE, BELOW, CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND FRIENDING HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS THAT YOU HAVE AGAINST MAGICMIRROR TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT IN SECTION 14 OF THESE TERMS: (i) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST MAGICMIRROR ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (ii) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION PROVISIONS SET FORTH IN SECTION 14 OF THESE TERMS COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING CLASS ACTION LITIGATION. PLEASE SEE SECTION 14 FOR MORE INFORMATION REGARDING THESE ARBITRATION PROVISIONS, INCLUDING THE ARBITRATION PROVISIONS’ IMPACT ON THE PENDING CLASS LITIGATION AND HOW TO OPT OUT OF ARBITRATION. THE TERMS OF SERVICE LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
- Why should you read these Terms? These terms create a legally binding agreement between you and us. By accessing or using the Site, you are accepting these Terms. Some of our Services may have additional rules, policies, and procedures. Where such additional terms apply, we will make them available for you.
- BY USING ANY SERVICES FROM MAGICMIRROR, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
- Some of our services may have additional rules, policies and procedures (collectively, “ADDITIONAL TERMS”). Where Additional Terms apply, we will make them available for you to read through in connection with your use of that service. By using that service, you agree to the Additional Terms. You confirm that you can enter the Agreement. You confirm and promise to us that you have the right, authority, and capacity to enter into these terms.
- Which provisions of the terms should you pay particular attention to? The key terms that you should consider in particular detail are Sections: Changes to the Site and these Terms; 9. Disclaimer; Limitation of Liability and Indemnification; 12. Termination and 14; Arbitration Agreement.
- What to do if you don’t want to accept these terms? If you do not agree with all of the provisions of these terms, do not access and/or use the Services.
- Information about FRIENDING and contact details
- Who we are. FRIENDING LLC. is located in TEXAS, USA. You can contact us by writing to us at 2028 E Ben White Boulevard suite 240 Austin Texas 78741
- How we may contact you. If we have to contact you we may do so by text or email to the number and/or address you provided when you registered for an Account.
- Email counts as “in writing”. When we use the words “writing” or “written” in these Terms, this includes emails. For contractual purposes, you consent to receiving communications from FRIENDING by email.
- Changes to the Services and these Terms
- Notice of Changes.We reserve the right to change the terms and conditions of this Agreement or to modify or discontinue the Services offered by FRIENDING at any time. Those changes will go into effect on the effective date shown in the revised agreement. If we change this Agreement, we will give you notice by posting the revised agreement on the applicable website(s) or app(s)
- Material Changes. In the event of a more significant change to the Services and/or this Agreement, meaning that the changes materially impact your rights under this Agreement or your use of the Services, we may also require you to provide consent to the updated agreement before further use of the Services is permitted. By continuing to use any Services after the new effective date, you agree to be bound by such changes. If the modified terms are not acceptable to you, except as otherwise required by law, your only recourse is to cease using the Services.
- Service Description and Participation/Account Creation/Eligibility
- Service Description and Participation. FRIENDING provides an online platform that connects our users with other that are interested in connection for dating purposes, friendship, making connections and other similar purposes (such users collectively referred to herein as “Customer” or “User”). As a User of the Services, you agree to provide us with complete and accurate information (if requested) and to update such information to keep it accurate, current and complete. You hereby grant FRIENDING the right to use and distribute the information that you have provided to FRIENDING for the purpose for which it was provided. YOU UNDERSTAND AND AGREE THAT THE FRIENDING HAS NO CONTROL OVER THE CONDUCT OF USERS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY AGREE TO RELEASE FRIENDING FROM ALL LIABILITY ARISING OUT OF OR RELATED TO ANY INTERACTIONS YOU MAY HAVE WITH OTHER USERS THROUGH YOUR USE OF THE SERVICES OR ANY ACT OR OMISSION OF OTHER USERS.
- Account Creation. In order to access certain features of the Apps and to use certain Services, you may be required register to create an account (“Account”). In connection with setting up your Account with MAGICMIRROR, we may supply you with a User identification and/or password. In connection with any future use, you may be asked to input your User identification and/or password from time to time. You agree to be responsible for all activity that occurs under your Account and agree to be responsible for maintaining the security of your password and User identification. You can delete your Account at any time, for any reason, by following the instructions on the Site.
- Before you can use our awesome App, you will need to register for an account (“Account”). In order to create an Account you must:
- be at least 18 years old; and
- be legally permitted to use the App by the laws of your home country.
- Unfortunately, we cannot allow you to use another person’s Account without permission – that just wouldn’t be fair!
You’ll have great fun on MAGICMIRROR , but if you feel the need to leave, you can delete your Account at any time by going to the ‘Settings’ page when you are logged in and clicking on the ‘Delete account’ link. Your Account will be deleted immediately but it may take a little while for Your Content to be completely removed from the App. FRIENDING LLC reserve the right at our sole discretion to terminate or suspend any Account, or make use of any operational, technological, legal or other means available to enforce the Terms (including without limitation blocking specific IP addresses), at any time without liability and without the need to give you prior notice.
- Acceptable Use You are responsible for your use of the Services, and for any use of the Services made using your Account. Our goal is to create a positive experience in connection with our Services. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other Users or to MAGICMIRROR. When you use the Services, you agree that you will not:
- contains language or imagery which could be deemed offensive or is likely to harass, upset, embarrass, alarm or annoy any other person;
- is obscene, pornographic, violent or otherwise may offend human dignity;
- is abusive, insulting or threatening, discriminatory or which promotes or encourages racism, sexism, hatred or bigotry;
- encourages any illegal activity including, without limitation, terrorism, inciting racial hatred or the submission of which in itself constitutes committing a criminal offence;
- is defamatory or libellous;
- relates to commercial activities (including, without limitation, sales, competitions and advertising, links to other websites or premium line telephone numbers);
- involves the transmission of “junk” mail or “spam”;
- contains any spy ware, adware, viruses, corrupt files, worm programmes or other malicious code designed to interrupt, damage or limit the functionality of or disrupt any software, hardware, telecommunications, networks, servers or other equipment, Trojan horse or any other material designed to damage, interfere with, wrongly intercept or expropriate any data or personal information whether from MAGICMIRROR or otherwise;
- itself, or the posting of which, infringes any third party’s rights (including, without limitation, intellectual property rights and privacy rights);
- shows another person which was created or distributed without that person’s consent.
- violate this Agreement or any MAGICMIRROR rules regarding use of the Services;
- solicit sex or any kind of sexual favors;
- stalk, harass, or harm another individual;
- impersonate any person or entity or perform any other similar fraudulent activity;Friending operates a zero-tolerance policy for this kind of content.
Content that you upload and provide (“Your Content”);
As Your Content is unique, you are responsible and liable for Your Content and will indemnify, defend, release, and hold us harmless from any claims made in connection with Your Content.
You may not display any personal contact or banking information on your individual profile page whether in relation to you or any other person (for example, names, home addresses or postcodes, telephone numbers, email addresses, URLs, credit/debit card or other banking details). If you do choose to reveal any personal information about yourself to other users, whether via email or otherwise, it is at your own risk. We encourage you to use the same caution in disclosing details about yourself to third parties online as you would under any other circumstances.
As MAGICMIRROR is a public community, Your Content will be visible to other users of the App all around the world instantly – so make sure you are comfortable sharing Your Content before you post. As such, you agree that Your Content may be viewed by other users and any person visiting, participating in or who is sent a link to the App (e.g. individuals who receive a link to a user’s profile or shared content from other MAGICMIRROR Users). By uploading Your Content onMAGICMIRROR, you represent and warrant to us that you have all necessary rights and licences to do so, and automatically grant us a non-exclusive, royalty free, perpetual, worldwide licence to use Your Content in any way (including, without limitation, editing, copying, modifying, adapting, translating, reformatting, creative derivative works from, incorporating into other works, advertising, distributing and otherwise making available to the general publish such Content, whether in whole or in part and in any format or medium currently known or developed in the future).
We may assign and/or sub-licence the above licence to our affiliates and successors without any further approval by you.
We have the right to remove, edit, limit or block access to any of Your Content at any time, and we have no obligation to display or review Your Content.
Content that members provide (“Member Content”)
Other members of MAGICMIRROR will also share content via the App. Member Content belongs to the user who posted the content and is stored on our servers and displayed via the App at the direction of the user providing the Member Content.
You do not have any rights in relation to other users’ Member Content, and you may only use other MAGICMIRROR users’ personal information to the extent that your use of it matches MAGICMIRROR purpose of allowing people to meet one another. You may not use other users’ information for commercial purposes, to spam, to harass, or to make unlawful threats. We reserve the right to terminate your Account if you misuse other users’ information.
Member Content is subject to the terms and conditions of Sections 512(c) and/or 512(d) of the Digital Millennium Copyright Act 1998. If you have a complaint about Member Content, please see the Digital Millennium Copyright Act section below for more information.
You may be wondering what happens to the rest of the Content on MAGICMIRROR. Well, it belongs to us! Any other text, content, graphics, user interfaces, trademarks, logos, sounds, artwork, and other intellectual property appearing on FRIENDING are owned, controlled or licensed by us and are protected by copyright, trademark and other intellectual property law rights. All right, title and interest in and to Our Content remains with us at all times.
We grant you a non-exclusive, limited, personal, non-transferable, revocable, license to access and use Our Content, without the right to sublicense, under the following conditions:
- you shall not use, sell, modify, or distribute Our Content except as permitted by the functionality of the App;
- you shall not use our name in metatags, keywords and/or hidden text;
- you shall not create derivative works from Our Content or commercially exploit Our Content, in whole or in part, in any way; and
- you shall use Our Content for lawful purposes only.
We reserve all other rights.
- Subject at all times to this Agreement, if you elect to download the App, the following also applies: MAGICMIRROR grants you a licence to download, install and use a copy of the App on a single mobile device or computer that you own or control solely for your personal and professional use on the basis that the licence is: a personal, revocable, non-exclusive, non-transferable license (without a right to sublicense) to download, install and use a copy of the App on a single mobile device or computer that you own or control solely for your personal and professional use, subject at all times to this Agreement, including the restrictions on use, the acceptable use provisions and our right to remove Your Materials (as defined in Section 8) at our discretion at any time. Furthermore, with respect to any App accessed through or downloaded from an App Store such as Google Play or the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (1) on a product that runs the operating system for which it was intended and (2) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App from a third party App Store is also subject to the provisions of Section 106.
- Payments, MAGICMIRROR Premium Plans and Cancellation
- MAGICMIRROR Free Services. If you don’t choose to purchase MAGICMIRROR Premium, you can simply use MAGICMIRROR for free.
- MAGICMIRROR Premium. MAGICMIRROR Premium offers Users with access to new features, including hide your age and locations, ability to send Quick message to other users without match, Hide yourself from your contact, etc. MAGICMIRROR has multiple subscription options to choose from, starting as low as $9.99 USD per month.
Payment Breakdowns and Models for MAGICMIRROR Premium:
1 month: $9.99 USD
3 months: $19.99 USD
6 months: $31.99 USD
If you choose to purchase MAGICMIRROR Premium, payment will be charged to your iTunes or Google Play account (as applicable). All subscription prices are in USD and are listed in full above. Prices may vary in other countries than the U.S. and except where prohibited by law, are subject to change without notice.
- Where to find the price. We may charge fees in connection with your use of the Services. If you are using the paid-for version of the Services, the price of the product will be the price indicated on the order pages when you placed your order. We use our best efforts to ensure that the price advised to you is correct. However please see Section 7.4 for what happens if we discover an error in the price of your order.
- We may make certain products and/or services available to users of the App in consideration of a subscription fee or other fees (“Premium Services”), including the ability to purchase products, services and enhancements, such as the ability to extend your matches (“In-App Products”). If you choose to use Premium Services or make In-App Products, you acknowledge and agree that additional terms may apply to your use of, access to and purchase of such Premium Services and In-App Products, and such additional terms are incorporated herein by reference.
- Your Account will be charged for renewal within 24 hours prior to the end of the current subscription period (regardless of the length of the subscription period). Auto-renewal may be turned off at any time by going to the iTunes Store or Google Play Store (as applicable) after purchase and must be turned off at least 24 hours before the end of the current subscription period to take effect. You agree to immediately notify MAGICMIRROR of any change in your payment and financial information. MAGICMIRROR reserves the right at any time to change its prices and billing methods. All information that you provide to us or our third party payment processors must be accurate, current and complete. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT CARD(S), PAYMENT MEANS OR OTHER FINANCIAL INFORMATION THAT YOU PROVIDE. You will also be responsible for paying any applicable taxes relating to payments that you make or that you receive.
- Once you have requested a Premium Service or In-App Product, you authorize us to charge your chosen Premium Payment Method and your payment is non-refundable. In-App Purchase, you will be prompted to enter details for your account with the Third Party Store you are using (e.g., Android, Apple, etc.) (“your Mobile Platform Account”), and your Mobile Platform Account will be charged for the Premium Service and/or In-App Product in accordance with the terms disclosed to you at the time of purchase, as well as the general terms applicable to all other in-app purchases made through your Mobile Platform Account (e.g., Android, Apple, etc.). Premium Services and In-App Products may include one-time purchases as well as monthly subscriptions (e.g., a one-month subscription, three-month subscription, six-month subscription, etc.) to additional account features.
- At the In-App Products, you will be charged the price of the subscription and will continue to be charged until you cancel your subscription. Please note that for Premium Services and In-App Products made on a subscription basis, your subscription will automatically renew for the same subscription period as you initially purchased (e.g., if you made an In-App Product for a six-month subscription, your subscription will be automatically renewed for an additional six-months). To avoid any charges for additional periods, you must cancel before the end of the free trial period, subscription period or renewal, as applicable, in accordance with the terms and conditions of your Mobile Platform Account and the terms and conditions of any applicable Third Party Store.
- Please note that for Premium Services and In-App Products you will be billed continuously for the subscription or service until you cancel in accordance with your Mobile Platform Account’s or your Premium Payment Method’s terms. In all cases, we are not responsible and have no liability whatsoever for any payment processing errors (including card processing, identity verification, analysis and regulatory compliance) or fees or other service-related issues, including those issues that may arise from inaccurate account information, or products or goods you obtain through your Mobile Platform Account or Third Party Stores.
- Further, FRIENDING does not guarantee those product descriptions or other content and products will be available, accurate, complete, reliable, current or error-free. Descriptions and images of, and references to, products or services (including Premium Services or In-App Products) do not imply our or any of our affiliates’ endorsement of such products or services. Moreover, FRIENDING and its third party operational service providers reserve the right, with or without prior notice, for any or no reason, to change product descriptions, images, and references; to limit the available quantity of any product; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from conducting any or all transaction(s); and/or to refuse to provide any user with any product.
- Further, if we terminate your use of or registration to the App because you have breached these Terms, you shall not be entitled to a refund of any unused portion of any fees, payments or other consideration.
- Ownership & Copyright
- The parties agree that all proprietary rights in the Services are and will remain the property of MAGICMIRROR. This includes non-personally identifiable aggregate data collected by MAGICMIRROR in connection with providing the Services, as well as usage statistics and traffic patterns, any and all rights, title and interest to which are hereby assigned to MAGICMIRROR by you.
(c) You agree not to interfere or take action that results in interference with or disruption of the Websites or Apps or servers or networks connected to the Websites or Apps. You agree not to attempt to gain unauthorized access to other computer systems or networks connected to the Websites or Apps. MAGICMIRROR reserves all other rights. Except as expressly provided herein, nothing on the Websites or as part of the Services will be construed as conferring any license under MAGICMIRROR and/or any third party’s intellectual property rights, whether by estoppel, implication or otherwise. Notwithstanding anything herein to the contrary, MAGICMIRROR may revoke any of the foregoing rights and/or your access to the Services, including the App, or any part thereof, at any time without prior notice.
- Copyright Policy. You acknowledge and agree that you are solely responsible for all of Your Materials that you make available through the Services. You represent and warrant that: you either are the sole and exclusive owner of all of Your Materials that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to MAGICMIRROR (or any other User as applicable) the rights in Your Materials, as contemplated under this Agreement
- Feedback. If you submit any ideas, suggestions or testimonials “Feedback” to MAGICMIRROR, you hereby transfer to us all rights in such Feedback without charge. You also agree that MAGICMIRROR shall have the right to use and fully exploit such Feedback in any manner that we consider appropriate, including posting on the Internet. Please note that the Feedback you provide to us will not be treated as confidential information – accordingly, you agree not to submit to us any information or ideas that you consider to be confidential or proprietary.You may only submit ideas and material if you have obtained appropriate copyright and other permission to submit such materials and to permit MAGICMIRROR to use such material without restriction. You agree that you will not violate or infringe the rights of third parties, including privacy, publicity and intellectual and proprietary rights, such as copyright or trademark rights.
9. PUSH NOTIFICATIONS; LOCATION-BASED FEATURES
We may provide you with emails, text messages, push notifications, alerts and other messages related to the App and/or the MAGICMIRROR services, such as enhancements, offers, products, events, and other promotions. After downloading the App, you will be asked to accept or deny push notifications/alerts. If you deny, you will not receive any push notifications/alerts. If you accept, push notifications/alerts will be automatically sent to you. If you no longer wish to receive push notifications/alerts from the App, you may opt out by changing your notification settings on your mobile device. With respect to other types of messaging or communications, such as emails, text messages, etc., you can unsubscribe or opt out by either following the specific instructions included in such communications, or by emailing us with your request
10. Disclaimer; Limitation of Liability and Indemnification
THE APP, SITE, OUR CONTENT, AND MEMBER CONTENT ARE ALL PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.
SHOULD APPLICABLE LAW NOT PERMIT THE FOREGOING EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, THEN WE GRANT THE MINIMUM EXPRESS OR IMPLIED WARRANTY REQUIRED BY APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS SECTION.MAGICMIRROR DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR USEFULNESS WITH RESPECT TO THE SERVICES. YOU AGREE THAT ANY CLAIMS OR CAUSES OF ACTION ARISING OUT OF ANY ACTION OR INACTION OF ANY THERAPISTS OR CUSTOMERS, SHALL BE EXCLUSIVELY BETWEEN YOU AND THE THERAPIST OR CUSTOMER (AS APPLICABLE) AND NOT MAGICMIRROR. THE SERVICES ARE PROVIDED ON A STRICTLY “AS IS” BASIS, WITH ALL FAULTS. YOU AGREE TO USE THE SERVICES SOLELY AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THE SERVICES. ALTHOUGH WE INTEND TO TAKE REASONABLE STEPS TO PREVENT ANY DAMAGES TO YOU, TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO THE FOREGOING.ADDITIONALLY, WE DO NOT MAKE ANY WARRANTIES THAT THE APP OR SITE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE OR THAT YOUR USE OF THE APP OR SITE WILL MEET YOUR EXPECTATIONS, OR THAT THE APP, SITE, OUR CONTENT, ANY MEMBER CONTENT, OR ANY PORTION THEREOF, IS CORRECT, ACCURATE, OR RELIABLE. YOUR USE OF THE APP OR SITE IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER MEMBERS. FRIENDING IS NOT RESPONSIBLE FOR THE CONDUCT OF ANY USER. MAGICMIRROR DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS MEMBERS.NEITHER US NOR ANY OWNER WILL BE LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME, PROFIT OR GOODWILL, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES ARISING OUT OF YOUR ACCESS TO OR USE OF THE APP, SITE, OUR CONTENT, OR ANY MEMBER CONTENT, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY OR OTHERWISE.
THE FOREGOING SHALL APPLY EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU BECOME DISSATISFIED IN ANY WAY WITH THE APP OR SITE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF THE APP AND SITE.
THE LIMITATION OF LIABILITY HEREIN IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. THE APP AND SITE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS AND EXCLUSIVE REMEDIES SPECIFIED HEREIN WILL SURVIVE EVEN IF FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.
- WHAT WE DO NOT EXCLUDE. NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR:
- DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS;
- FRAUD OR FRAUDULENT MISREPRESENTATION;
- ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
- Location of the Services. The Services are controlled by MAGICMIRROR from its facilities in the United States of America. MAGICMIRROR makes no representations or warranties that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with all applicable local laws and regulations
11. Third Party Links & App Store.
- Third-Party Links & Ads. The Services may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Where the Services contain links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. MAGICMIRROR does not review, approve, endorse or make any promises with respect to Third-Party Links & Ads. You use Third-Party Links & Ads at your own risk. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms.
- App Store. When you download our Apps, you may do so through a third party’s App Store. You acknowledge that the terms of this Agreement are between you and us and not with the owner or operator of the App Store (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application (as such term is defined in Section 7):
- Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.
- You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
- These Terms are concluded solely between you and FRIENDING LLC. and not with the providers of the Third Party Store, and FRIENDING LLC. (and not the Third Party Store providers) is solely responsible for the App and the content thereof. To the extent that these Terms provide for usage rules for the App which are less restrictive or in conflict with the applicable terms of service of the Third Party Store from which you obtain the App, the more restrictive or conflicting term of the Third Party Store will take precedence and will apply.
- The Third Party Store provider has no obligation whatsoever to provide any maintenance and support services with respect to the App. FRIENDING LLC. is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. The Third Party Store provider will have no warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of FRIENDING LLC.
- FRIENDING LLC., not the Third Party Store provider, is responsible for addressing any claims you or any third party may have relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; and/or (iv) intellectual property infringement claims.
- The Third Party Store provider and its subsidiaries are third party beneficiaries of this Agreement, and, upon your acceptance of these Terms, the Third Party Store provider from whom you obtained the App will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
- Without limiting any other terms in this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application
12. INDEMNITYAll the actions you make and the information you post on MAGICMIRROR remain your responsibility. Therefore, you agree to indemnify, defend, release, and hold us, and our partners, licensors, affiliates, contractors, officers, directors, employees, representatives and agents, harmless, from and against any third party claims, damages (actual and/or consequential), actions, proceedings, demands, losses, liabilities, costs and expenses (including reasonable legal fees) suffered or reasonably incurred by us arising as a result of, or in connection with:
- any negligent acts, omissions or wilful misconduct by you;
- your access to and use of the App;
- the uploading or submission of Content to the App by you;
- any breach of these Terms by you; and/or
- your violation of any law or of any rights of any third party.
- We retain the exclusive right to settle, compromise and pay any and all claims or causes of action which are brought against us without your prior consent. If we ask, you will co-operate fully and reasonably as required by us in the defence of any relevant claim.
- When we might suspend or terminate your Account . We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate this Agreement and/or your access to the Services, and (b) deactivate or cancel your Account.
- What happens when these Terms terminate? In the event MAGICMIRROR terminates this Agreement or your access to the Services or deactivates or cancels your Account, you will remain liable for all amounts due hereunder.
- Your right to cancel. You may cancel your Account at any time by contacting us. Please note that if your Account is cancelled, we do not have any obligation to delete or return to you any of Your Content that you have posted to the Services, including, but not limited to, any reviews or Feedback.Other Important Terms
- Anti-Spam. MAGICMIRROR prohibits the sending of unsolicited bulk email or text messages (spam). Spam is defined for this purpose as sending multiple messages similar in content to any persons, entities, newsgroups, forums, email lists, or other groups or lists unless prior authorization has been obtained from the recipient or unless a business or personal relationship has already been established with the recipient. MAGICMIRROR also prohibits using false headers in emails or falsifying, forging or altering the origin of any email or text message in connection with FRIENDING, and/or any products and Services. MAGICMIRROR prohibits engaging in any of the foregoing activities by using the service of another provider, remailer service, or otherwise. IF YOU OR ANYONE YOU KNOW IS “SPAMMED” BY SOMEONE IN RELATION TO MAGICMIRROR SERVICES, PLEASE CONTACT US PROMPTLY VIA THE CONTACT MECHANISM MADE AVAILABLE VIA THE WEBSITE SO THAT WE MAY TAKE APPROPRIATE ACTION.
- If, for any reason, any of the Terms are declared illegal, invalid or otherwise unenforceable by a court of a competent jurisdiction, then to the extent that term is illegal, invalid or unenforceable, it shall be severed and deleted from the Terms and the remainder of the Terms shall survive, remain in full force and effect and continue to be binding and enforceable.
- No failure or delay in exercising any right, power or privilege under the Terms shall operate as a waiver of such right or acceptance of any variation of the Terms and nor shall any single or partial exercise by either party of any right, power or privilege preclude any further exercise of the right or the exercise of any other right, power or privilege.You represent and warrant that:
- you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and
- you are not listed on any U.S. Government list of prohibited or restricted parties.
- Even if we delay in enforcing these Terms, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking these Terms, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
- Severability. If any provision of this Agreement or any word, phrase, clause, sentence, or other portion thereof should be held to be unenforceable or invalid for any reason, then such provision or portion thereof shall be modified or deleted in such manner as to render this Agreement as modified legal and enforceable to the maximum extent permitted under applicable laws.
- Rights and Waiver. No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of this Agreement may be waived or amended only in writing and only by the party that is entitled to the benefits of the term(s) or condition(s) being waived or amended. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
- The party entering into this Agreement hereby acknowledges, represents and warrants that he or she is expressly and duly authorized to enter into this Agreement and to legally bind said party to this Agreement.
- We may transfer these Terms to someone else. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by without restriction. We may transfer our rights and obligations under these Terms to another organisation – for example, this could include another member of our group of companies or someone who buys our business. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under these Terms.
- These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction.
- Notice to California Users. Under California Civil Code Section 1789.3, Users of the Services from California are entitled to the following specific consumer rights notice. You may report complaints to The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Our right to cancel. If we terminate this Agreement and/or your access to the Services as a result of your violation of any applicable law or regulation, we may also, at our sole discretion, inform law enforcement or regulatory authorities of the circumstances surrounding such termination.14. DIGITAL MILLENNIUM COPYRIGHT ACTFRIENDING has adopted the following policy towards copyright infringement in accordance with the Digital Millennium Copyright Act (the “DMCA”). If you believe any Member Content or Our Content infringes upon your intellectual property rights, please submit a notification alleging such infringement (“DMCA Takedown Notice”) including 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;
- Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have 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, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
- Any DMCA Takedown Notices should be sent to: firstname.lastname@example.org
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THIS AGREEMENT.
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2028 East Ben White Boulevard, Suite 240
Austin, Texas 78741