1. Parties. Welcome to the Magic Moments marketplace, where you can purchase products customized with your images! This "Terms of Service and End User License Agreement" ("Agreement" or "TOS") is a legal contract between Magic Moments Media, LLC, a Michigan limited liability company with offices at 1900 Stephenson Highway, Troy, Michigan 48083 ("Magic Moments") and the person who downloaded the Magic Moments mobile software application ("You" or "Customer").
2. Agreement. This is the entire agreement between Magic Moments and Customer. It may be updated and modified by Magic Moments from time to time. Those modifications are incorporated into and made a part of the Agreement. You will be notified of significant modifications when you use the Magic Moments mobile software application or seek to purchase customized products at the Magic Moments web site or the sites of companies collaborating with Magic Moments ("Sites").If you do not accept the modifications to the Agreement, your sole remedy is to cease use of the Magic Moments software and not to place any further product orders.
3. License of App.The mobile software application described at http://www.magicmoments.com/about.html ("App") enables you to visit Sites, select merchandise that you wish to customize with your own images, upload the images and complete the purchase of products. By accepting this Agreement, Magic Moments authorizes you to download, install, and execute the App on any iPhone or iPod touch that you own or control. This license is nonexclusive, for so long as Magic Moments continues to provide its product customization services, and personal to you. It may not be transferred to any third party. You may not (i) modify the App; (ii) create derivative works; (iii) reverse engineer, decompile, or disassemble the software; (iv) integrate the App with other computer programs; or (v) give the App to third parties. Magic Moments retains all intellectual property rights in the App, including copyright, trademark, trade secret, and patent. All rights not expressly licensed are reserved to Magic Moments and no rights may be implied. 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. If you have any questions, complaints, or claims about the App, please contact: Magic Moments Media, LLC 1900 Stephenson Highway Troy, Michigan 48083 USA Telephone: (248) 613-2558 Email: firstname.lastname@example.org
4. Remedy. The App is provided at no charge. If the App does not work as described, you may either seek technical assistance from Magic Moments, or download a newer version when it becomes available, or stop using the App and delete it from your devices. This is your sole and exclusive remedy in the event the App does not perform as described.
5. Services. At the Sites you may select products that you would like to purchase, customize them with images, and have them delivered to yourself or to designated recipients. In this Agreement, "Products" refers to the tangible goods that you will purchase and "Content" refers to the images and text appearing in the file that you upload with the intent to reproduce the Content on the Product. In some cases, the Products are provided by third parties that have a business relationship with Magic Moments. A more detailed description of the services provided by Magic Moments is found at www.magicmoments.com/services, and includes, without limitation the mobile telephone software application used by Customer to upload Content and purchase Products ("Services").
6. Limitation of Liability for Damages. REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, IN NO EVENT SHALL MAGIC MOMENTS OR APPLE BE LIABLE TO YOU IN CONNECTION WITH THIS AGREEMENT, INCLUDING USE OF THE APP, THE PURCHASE OF PRODUCTS, OR SERVICES, FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES (EVEN IF MAGIC MOMENTS OR APPLE IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES); LOST PROFITS, LOST REVENUE, LOST BUSINESS EXPECTANCY, BUSINESS INTERRUPTION LOSSES, OR LOSS OF DATA; AND/OR DIRECT DAMAGES IN AN AMOUNT IN EXCESS OF THE FEES PAID BY YOU FOR DEFECTIVE PRODUCTS THAT WERE NOT REMEDIED. NOTHING IN THE FOREGOING LIMITS ANY RIGHTS YOU HAVE UNDER STATE LAW THAT MAY NOT BE LIMITED BY THIS DISCLAIMER.
7. Refund. If you have paid Apple a license fee for the App, in the event of any failure of the App to conform to the description at http://www.magicmoments.com/about.html, you may notify Apple within thirty (30) days of your purchase and Apple will refund the purchase price for the App.
8. Magic Moments, and not Apple, is responsible for this App, the Products, the Services, and this Agreement. Specifically, Magic Moments and not Apple: (i) is solely responsible for the App product warranties; (ii) is solely responsible for any claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to the product warranty; (iii) is responsible for addressing any claims relating to the App, including but not limited to product liability claims, any claim that the App fails to conform to any applicable legal or regulatory requirement, and claims arising under consumer protection or similar legislation; (iv) provides maintenance and technical support of the App as described at https://www.magicmoments.com/MM/support.html; (v) is solely responsible for third party claims asserting that your possession or use of the App violates the intellectual property rights of such third party and Magic Moments will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim; (vi) is entering into this Agreement with you. Although Apple is not a party to this Agreement, you agree that Apple and Apple's subsidiaries are third party beneficiaries of this Agreement; upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against the end-user as a third party beneficiary thereof.
9.1 You accept this policy by using the App, visiting the Sites, by registering at the Sites, or by otherwise providing Magic Moments with personally identifiable information.
9.3 Magic Moments collects information about you that is personally identifiable ("PI") when you provide it to Magic Moments (including your name, email address, and password), such as when you register at the Sites. All passwords are stored on our server in encrypted form. If you lose your password, Magic Moments provides a means for you to change your password through your email account.
9.4 Once you have registered with Magic Moments you can access your account, review the information that is stored, and revise or delete that information. You will need to email Magic Moments a written request to delete your entire account.
9.5 Magic Moments requires that anyone who sets up an account with Magic Moments is at least the age of 18 years. If you are below the age of 18 years, you must have a parent or guardian sign this Agreement. Magic Moments does not knowingly collect personally identifiable information from children under the age of 13. If a child under the age of 13 has provided Magic Moments with personally identifiable information, a parent or guardian should contact Magic Moments.
9.6 Magic Moments may provide links to third party websites. Magic Moments is not responsible for the content or information collection practices of those sites, including their privacy policies. Please review the privacy policies of such sites.
9.9 Please contact Magic Moments with any privacy questions and/or comments you may have:
Magic Moments Media, LLC 1900 Stephenson Highway Troy, Michigan 48083 USA Telephone: (248) 613-2558 Email: email@example.com
10. Customer Account; Representations and Warranties; Indemnification.
10.1 Account Creation. To upload Content and access Services, you must create an account. You represent and warrants that:
(a) You will be the only person uploading Content and engaging in transactions through that account;
(b) You will keep your passwords secure;
(c) You will notify Magic Moments of any suspected breach of security or unauthorized use of its account;
(d) All information provided in connection with you r account is accurate;
(e) You have the right to transact business in the US, and to enter into this Agreement for the use of the Site;
(f) You have the right to upload the Content and to authorize Magic Moments and its partners to reproduce copies, store, and use the Content in connection with the Products, and to authorize third parties to use the Content as set forth in Section 13.1 (if you elect to participate in the Magic Moments Mobile Social Marketplace);
(g) The Content is lawful and does not violate any state or federal law, or violate the rights of any third party;
(h) You are over the age of eighteen (18) years;
(i) You shall not assign or transfer the account to a third party, and shall not enable access to the account or the Site; and
(j) Communications through the Site (for example, with other users) or the sharing of information will be in the actual name of Customer, shall be consistent with the authorized purposes of the Site, and shall be in compliance with all applicable laws.
10.2 Prohibited Content. Magic Moments, for its own behalf and on behalf of the companies and organizations with whom it partners to provide the Products and Services, has a policy against conduct that is unlawful or what it considers to be otherwise improper. Accordingly, in connection with the Services and your business relationship with Magic Moments, you agree not to reproduce copies of Content, upload Content, purchase Products that embodies Content, distribute Content, that:
10.3 Investigations; Possible Actions. Magic Moments reserves the broadest rights allowable under law and this Agreement to take actions it deems appropriate with respect to the Content and conduct at the Site. Customers, Magic Moments partners, members of the public, rights-holders and others may contact Magic Moments to complain of any conduct that they believe is inconsistent with the obligations of Customers under this Agreement. You understand and acknowledge that Magic Moments may take actions with which you disagree, and it may (by way of example and not limitation) remove Content, destroy electronic files containing Content, refuse to accept orders for Products, report Content to law enforcement, notify third parties of the Content posted, and terminate your account.
(a) Customer acknowledges that its account with Magic Moments and its access to the Site is based upon the truth of the promises, statements, and representations made in this Agreement. Customer hereby indemnifies, holds harmless, and agrees to defend Magic Moments against all damages, losses, judgments, penalties, expenses, costs, and fees (including reasonable attorneys' fees) incurred by, or awarded or assessed against Magic Moments in connection with any third party (including domestic or foreign governments or agencies) assertion inconsistent with the promises, statements, representations, and warranties. This obligation survives termination of this Agreement and extends to the third parties with whom Magic Moments does business relating to the Products. As used in this section, "Magic Moments" includes Magic Moments, its officers, directors, employees, members, managers, contractors, agents, affiliates, related business entities, successors, assigns, and business partners.
(b) In addition to the obligation of indemnification, above, Customer agrees to use its best efforts to assist Magic Moments in the investigation and resolution of any third party claim or assertion inconsistent with Customer's representations and warranties. Customer agrees to provide such assistance at no charge and promptly upon receipt of notice from Magic Moments of such claim or assertion.
11. Product Shipping; Inspection. Unless other terms are provided at the time Customer places an order for the purchase of Products, all items shipped by Magic Moments and its partners shall be prepared and packaged for shipment in a manner designed to prevent damage in transit. Customer shall inspect all items upon receipt, and shall notify Magic Moments and/or its order fulfillment partner within ten (10) calendar days after receipt of any damage to the Products that occurred during shipment or of any Product Customer believes to be defective. Magic Moments shall promptly replace any defective or damages goods with conforming Products, or shall return to Customer any payments received for such damaged or defective goods. The foregoing is the sole and exclusive remedy in the event of delivery of damaged or defective Products.
12. AS-IS Warranty. MAGIC MOMENTS PROVIDES THE APP AND SERVICES "AS IS" WITH NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Magic Moments does not warrant that the App, Site, or the Services will be error-free, or operate without interruption. Magic Moments will use commercially reasonable efforts to correct bugs and maintain the Site and its software. The remedies provided in Section 4 are the sole and exclusive remedies provided to Customer under this Agreement relating to the Apps and the Services and are in lieu of all other remedies by contract, by law, and at equity.
13. Customer Content; Mobile Social Marketplace; Permission to Use Data in Aggregate.
13.1 Customer retains the rights applicable to its Content. Customer may elect to participate in the Magic Moments "mobile social marketplace" ("MSM") The MSM allows Customers to design and upload their Content to various social media forums (such as Facebook, Twitter, and the Magic Moments community) and allow others to order Products incorporating Customer's Content. Magic Moments agrees to share with you a portion of the funds it receives on such Products. Although the business terms for the MSM may change in the future (upon prior written notice to you), the following terms apply:
(a) The provisions of Section 10.1(f) and 10.2 are applicable to the Content Customer makes available through the MSM
(b) Customer is free to apply a copyright notice/Customer's name on the Content;
(c) Magic Moments will pay you a percentage ("Content License Fee") of its Net Sales for the Products bearing Customer's Content sold through the MSM (Net Sales means the Gross Sales received for such Products less anything paid by Magic Moments to third parties, such as taxes, insurance, shipping, and the like).
(d) The initial Content License Fee is five percent (5%) of Net Sales. Magic Moments will pay you no less often than quarterly and the payment will be accompanied by business information reasonably available to Magic Moments as to the Products sold bearing Customer's Content. Magic Moments will notify Customer as to the form of the payment (which will likely be by check but may be by direct funds transfer or other method). Magic Moments will deduct from any Content License Fee payment any direct costs associated with the payment of funds other than if by check (for example, bank transfer fees for wire transfers).
(e) If the payment for any quarter is less than Fifty Dollars (U.S. $50), Magic Moments may elect either to carry the payment over to the following quarter, or issue Customer a credit equal to the amount of the Content License Fee to be applied by Customer to future Product purchases. Customer must use any Content License Fee credit within one (1) year of the date Customer received notice of the availability of such Fee.
(f) If Customer has any questions as to the accuracy of any Content License Fee, Customer shall notify Magic Moments in writing no later than ten (10) calendar days after receipt. Magic Moments shall use reasonable efforts to investigate any Customer inquiries, and Customer acknowledges that Magic Moments may need to obtain information from third parties involved in selling and shipping the Products. Content License Fee payments are deemed accepted if Customer does not notify Magic Moments within such time period.
(g) Magic Moments believes that the Mobile Social Marketplace will be a terrific opportunity for its Customers and the public. However, Customer acknowledges that the decision to continue operation of the MSM, and the terms of such operation, is within the sole discretion of Magic Moments.
13.2 Customer grants Magic Moments permission to use the data relating to the Content and Customer's use of the Services for any lawful business purposes, provided that the data is used either in the aggregate or in a manner that does not otherwise publicly identify Customer or disclose any nonpublic information. This license is irrevocable, royalty-free, worldwide, sublicensable, and transferable.
14. Termination; Suspension. This Agreement shall continue until terminated by Customer or Magic Moments for any reason, with or without notice. Magic Moments may suspend, without any liability to Customer, Customer's account, limit access to software or Services, or place a hold on the shipment of any Products, for any reason, including in connection with an investigation, response to legal process, concern for the integrity of the Site, reasonable suspicion of improper conduct at the Site.
15. Integrity of the Site. Customer shall not to take any action to interfere with the operation of the App or the Site, to attempt to copy its underlying technology, to upload other computer programs, or copy Content not owned by Customer. Customer agrees not to use any automated software (crawlers, robots, bots, spiders, extractors, etc.) at the Site; circumvent, disable or otherwise interfere with security-related features or digital rights management functions at the Site; or hack, reverse engineer, or disable any technology at the Site.
16. Place of Business. The Services and Site are deemed to be located in and delivered from Troy, Michigan, USA. This Agreement is entered into, performed in, and based in Troy (Oakland County), Michigan, USA. The site does not give rise to personal jurisdiction over Magic Moments, either specific or general, in jurisdictions other than Michigan. This Agreement shall be governed by the internal substantive laws of the State of Michigan, without respect to its conflict of laws principles. Any claim or dispute between Customer and Magic Moments that arises in whole or in part from the Services, Products, App, or this Agreement shall be decided exclusively by a court of competent jurisdiction located in (or having jurisdiction over) Troy, Michigan.
17. No Implied Waiver. No waiver by Magic Moments shall be implied. Any waiver of any term of this Agreement must be in writing and signed by an officer of Magic Moments.
18. Severability. If any portion of this Agreement is found to be unenforceable, such portion will be modified to reflect the intent of the parties set forth in such portion and only to the extent necessary to make it enforceable. The remaining provisions of this Agreement will remain in full force and effect.
19. Statute of Limitations. Any litigation or other dispute resolution arising out of or related to this Agreement must be commenced within one (1) years after the date of the event giving rise to the claim. Otherwise, such causes of actions are permanently barred.
20. International Considerations. Magic Moments makes no representations that the site or software is appropriate or available for use in locations other than the United States. Those who access or use the Site or use the App from outside the U.S. do so at their own volition and are responsible for compliance with applicable laws.
21. Assignment. Magic Moments may assign, subcontract, delegate, and transfer its rights and obligations under this Agreement to a third party. You may not assign or transfer your account.
22. Notices. Magic Moments may provide you with notices, including those regarding changes to this Agreement, by email, first class mail, postings to the Site, and App updates. Notice is deemed given upon the earlier of (i) actual receipt, (ii) twenty-four (24) hours after an email is sent, (iii) three (3) days after first class mail is deposited with the U.S. Postal Service, (iv) at the time the updated App is downloaded by you, or (v) ten (10) days after a notice is posted to the Site.
23. Force Majeure. It shall not be a material breach of this Agreement, and neither party shall be liable to the other, if prevented from performing its duties or responsibilities under this Agreement by reason of any fire or other casualty, acts of God, earthquake, floods, explosions, interrupted power supply, sabotage, war, riots, acts of terrorism; inability to procure or a general shortage of labor, equipment, facilities, materials or supplies in the open market; strikes, court orders, laws, regulations, or orders of government or military authorities; or any other cause not within the control of such party whose performance is delayed. By clicking "I AGREE" you accept the terms and conditions of this Agreement (Customers under the age of 18 years must have a parent or guardian Accept this Agreement).