TERMS OF USE
Please read these terms of service and Our Privacy
Policy (together, these “Terms”) carefully as they form a
contract between You and Magic Software Inc (“Magic”) and govern use of and access to the Service and Websites by
You, Your Affiliates and End-Customers whether in connection with a paid
subscription to the Service or a free trial of the Service. In the event of a
conflict between these terms of service and Our Privacy Policy, these terms of
service shall prevail.
By accessing or using the Website & the
portal, or authorizing or permitting any End-User to access or use the
Websites, You agree to be bound by these Terms. If You are entering into these
Terms on behalf of a company, organization or another legal entity (an “Entity”),
You are agreeing to these Terms for that Entity and representing to Magic that
You have the authority to bind such Entity and its Affiliates to these Terms,
in which case the terms “End-Customers”, “MagicBox”, “You,” “Your” or
related capitalized terms herein shall refer to such Entity and its Affiliates.
If You do not have such authority, or if You do not agree with these Terms, You
must not accept these Terms and may not use the Websites or the Portal.
We may update the Service and Our Websites from
time to time and may change content at any time. However, please note that any
of the content on Our Websites may be out of date at any given time, and we are
under no obligation to update it.
1. USE OF THE SERVICE AND WEBSITES
1.1 Subject to compliance by
You, and End-Customers with these Terms and solely during the Subscription
Term, You have the limited right to access and use the Portal in accordance
with the Service Plan(s) that You subscribe to for Your business purposes. You
must be 18 years or older to use MagicBox
(“Portal”). By registering for the Portal you accept to use the below
mentioned terms:
(A)With the basic plan you will be able to
upload only 20 titles. (B) You can add 1000 users at max into the portal. (C)
These 20 titles and 1000 users are free for one year from the date of
registration. (D) For the portal, one user should be logging in from one
browser at the same time rather than using multiple browsers. (E) All the
content uploaded on the portal, is your own copyright and is not anyone else’s
copyrighted product.(F) You agree that you have the right to access the portal
created via apps on platforms like Mac, IOS, Windows, Android only when you have upgraded to Pro
account.
1.2 In addition to complying
with the other terms, conditions and restrictions set forth below in these
Terms, You agree not to (a) modify, adapt, or hack the Service or otherwise
attempt to gain unauthorized access to the portal or related systems or
networks; (b) falsely imply any sponsorship or association with Magic (c) use
the portal in any unlawful manner, including but not limited to violation of
any person’s privacy rights (d) use the portal to store or transmit files,
materials, data, text, audio, video, images or other content that infringes on
any person’s intellectual property rights, If anyone complains to Magic about
copyright infringement we will immediately take
down the content until the issue has been sorted out between the
complaining party and the publisher.; (e) use the portal in any manner that
interferes with or disrupts the integrity or performance of the Service and its
components; (f) attempt to decipher, decompile, reverse engineer or otherwise
discover the source code of any Software making up the Service or the portal; (g)
use the portal to knowingly post, transmit, upload, link to, send or store any
content that is unlawful, racist, hateful, abusive, libelous, obscene, or
discriminatory; (h) use the Service to store or transmit any “protected health
information” as that term is defined in 45 C.F.R. 160.103 unless expressly
agreed to otherwise in writing by Magic; (i) use the Service to knowingly post
transmit, upload, link to, send or store any viruses, malware, Trojan horses,
time bombs, or any other similar harmful software (“Malicious Software”);
or (j) try to use, or use the Service in violation of these Terms.
1.3 You are responsible for
compliance with the provisions of these Terms by the End-Customers and for any
and all activities that occur under Your Account, as well as for all Your Data.
Without limiting the foregoing, You are solely responsible for ensuring that
Your use of the Service to store and transmit Your Data is compliant with all
applicable laws and regulations. You also maintain all responsibility for
determining whether the information generated thereby is accurate or sufficient
for Your purposes. You agree and acknowledge that each user will be identified
by a username and password (“Login”) and that the user login may only be
used by the individual. You are responsible for maintaining the confidentiality
of all Login information for the Accounts. Magic will not be held liable for
any damage or loss that may result from Your failure to protect the login
information, including passwords.
1.4 In addition to Our rights
as set forth in Section 7.4, Magic reserves the right, in Magic’s reasonable
discretion, to temporarily suspend Your access to and use of the portal: (a)
during planned downtime for upgrades and maintenance to the portal (“Planned
Downtime”); (b) during any unavailability caused by circumstances beyond
Our reasonable control, such as, but not limited to, acts of God, acts of
government, acts of terror or civil unrest, technical failures beyond Our
reasonable control (including, without limitation, inability to access the
Internet), or acts undertaken by third parties, including without limitation, distributed
denial of service attacks; or (c) if We suspect or detect any Malicious
Software connected to Your Account or use of the portal by You, or
End-Customers. We will use commercially reasonable efforts to schedule Planned
Downtime for weekends (IST) and other off-peak hours.
1.5 You will need a high
speed Internet connection in order for the portal to function as intended. You
are responsible for procuring and maintaining the network connections that
connect Your network to the portal, including, but not limited to, “browser”
software that supports protocols used by Magic, including Secure Socket Layer
(SSL) protocol or other protocols accepted by Magic, and to follow procedures
for accessing services that support such protocols. We are not responsible for
notifying You, or End-Customers of any upgrades, fixes or enhancements to any
such software or for any compromise of data, including Your Data, transmitted
across computer networks or telecommunications facilities (including but not
limited to the Internet) which are not owned, operated or controlled by Magic.
We assume no responsibility for the reliability or performance of any
connections as described in this section. There is no need for an internet
connection to read the content on the apps provided you have upgrade to Pro
version of MagicBox (“MagicBox Lite” or “MB Lite”)
1.6 We do not guarantee that
Our Websites, or any content on them, will always be available or be
uninterrupted. We reserve the right to suspend, withdraw, discontinue or change
all or any part of Our Websites, excluding the Service, without notice. We will
not be liable to You if for any reason Our site is unavailable at any time or
for any period. You are responsible for making all arrangements necessary for
You to have access to Our Websites. We assume no responsibility of the content
rendering on the portal/reader if the way content created is incorrect or not
as per the content guidelines.
1.7 Where
Our Websites contain links to other websites and resources provided by third
parties, these links are provided for Your information only. We have no control
over the contents of those websites or resources.
2. INTELLECTUAL PROPERTY RIGHTS
2.1 Each of us shall maintain
all rights, title and interest in and to all our respective patents,
inventions, copyrights, trademarks, domain names, trade secrets, know-how and
any other intellectual property and/or proprietary rights (collectively, “Intellectual
Property Rights”). The rights granted to You, and End-Customers to use the Portal,
Service and the Websites under these Terms do not convey any additional rights
in the Service or Websites, or in any Intellectual Property Rights associated
therewith. Subject only to limited rights to access and use the Portal and
Websites as expressly stated herein, all rights, title and interest in and to
the Service, portal the Websites and all hardware, Software and other
components of or used to provide the Service and Websites, including all
related Intellectual Property Rights, will remain with and belong exclusively
to Magic. Magic shall have a royalty-free, worldwide, transferable,
sub-licensable, irrevocable and perpetual license to incorporate into the
Service and/or Websites/Portal or otherwise use any suggestions, enhancement
requests, recommendations or other feedback We receive from You, or
End-Customers. Magic, and Magic’s other product and service names, and logos
used or displayed on the Service or Websites are registered or unregistered
trademarks of Magic (collectively, “Marks”), and You may only use
such Marks to identify You as a Magic User; provided You do not attempt, now or
in the future, to claim any rights in the Marks, degrade the distinctiveness of
the Marks, or use the Marks to disparage or misrepresent Magic, its services or
products.
2.2 You must not use any part
of the content on Our Websites for commercial purposes without obtaining a
license to do so from us or Our licensors. We are the owner or the licensee of
all Intellectual Property Rights in Our Websites, and in the material published
on it. Those works are protected by copyright laws and treaties around the
world. All such rights are reserved.
2.3 Magic claims no
intellectual property rights over the content You upload or provide to the
Service.
2.4 Notwithstanding anything
to the contrary herein, you agree that Magic may obtain and aggregate technical
and other data about your use of the Service that is non-personally
identifiable with respect to you, including without limitation, time stamps, report,
(“Aggregated Anonymous Data”), and Magic may use the Aggregated Anonymous Data
to improve, support and operate the Service and otherwise for any business
purpose during and after your use of the Service. For clarity, this Section 2.4
does not give Magic the right to identify you as the source of any Aggregated
Anonymous Data.
3.
THIRD-PARTY SERVICES
3.1 If
You decide to enable, access or use Other Portal, be advised that Your access
and use of such Other Services is governed solely by the terms and conditions
of such Other Services, and We do not endorse, are not responsible or liable
for, and make no representations as to any aspect of such Other Services,
including, without limitation, their content or the manner in which they handle
data (including Your Data) or any interaction between You and the provider of
such Other Services. You irrevocably waive any claim against Magic with respect
to such Other Services. Magic is not liable for any damage or loss caused or
alleged to be caused by or in connection with Your enablement, access or use of
any such Other Services, or Your reliance on the privacy practices, data
security processes or other policies of such Other Services. You may be
required to register for or log into such Other Services on their respective
websites. By enabling any Other Services, You are expressly permitting Magic to
disclose Your Data as necessary to facilitate the use or enablement of such
Other Service.
4.
BILLING, PLAN MODIFICATIONS AND PAYMENTS
4.1 Unless otherwise
indicated on a Form referencing these Terms and subject to Section 5.2, all
charges associated with Your access to and use of the Portal, Upgrade (“Subscription
Charges”) are due in full upon commencement of Your Subscription Term, and
You hereby authorize Magic or its authorized agents, as applicable, to bill you
or other accepted payment method beginning upon the commencement of Your
Subscription Term (and any renewal thereof) in accordance with the terms of the
Service Plan until You terminate Your Subscription as provided in these Terms
or a Form. You acknowledge and agree that Magic may use a third party service
provider to manage credit card and other payment processing; provided, that
such service provider is not permitted to store, retain or use Your payment
account information except to process Your credit card and other payment
information for Magic. In order to ensure that we are able to process Your
Subscription Charges without interruption, You must notify us of any change in
Your credit card or other payment account information, either by updating Your Account
on Our Website or otherwise. You will receive a receipt upon each receipt of
payment by Magic, and You may obtain a receipt from within the Service. Any
update made by You on the Service Plans shall authorize Magic to issue
recurring transactions for subsequent terms until cancellation of the account.
4.2 Unless otherwise
indicated on a Form referencing these Terms or required by applicable laws, all
Subscription Charges are non-refundable. There will be no refunds or credits
for partial months of the Service used or if You do not use the Portal/Service
during a period of time when Your Account is open. You will be required to
prepay Charges for Pro account. Unless otherwise indicated on any Form, if You
fail to pay Your Subscription Charges or charges for other services indicated
on any Form referencing these Terms within a maximum of five (5) business days
of Our notice to You that payment is due or delinquent, or if You do not update
payment information upon Our request, in addition to Our other remedies, We may
suspend or terminate access to and use of the Service by You, Your Affiliates
and End-Customers.
4.3 If You upgrade or
downgrade Your Service Plan, Your credit card or other designated payment
method will be charged Your new billing rate immediately (on a pro-rated basis)
upon your election to upgrade or downgrade, - unless You cancel Your Account as
provided in these Terms or a Form. If You upgrade Your Service Plan or increase
the number of Agents during Your Subscription Term (a “Subscription
Upgrade”), any incremental Subscription Charges associated with such
Subscription Upgrade will be prorated over the remaining period of Your
then-current Subscription Term, charged to Your Account and due and payable
upon implementation of such Subscription Upgrade. Your Subscription Charges
will reflect any such Subscription Upgrades in any subsequent Subscription
Terms, unless You cancel [the Subscription Upgrade] as provided in these Terms
or a Form.
4.4 Other than a credit for
downgrade of an annual Service Plan, no refunds or credits for Subscription
Charges or other fees or payments will be provided to You if You elect to
downgrade Your Service Plan. Downgrading Your Plan may cause loss of content,
features, or capacity of the Service as available to You under Your Account,
and Magic does not accept any liability for such loss.
4.5 Unless otherwise stated,
the Subscription Charges do not include any taxes, levies, duties or similar
governmental assessments, including value-added, sales, use or withholding
taxes assessable by any local, state, provincial or foreign jurisdiction
(collectively “Taxes”). You are responsible for paying Taxes except
those assessable against Magic based on its income. We will invoice You for
such Taxes if We believe We have a legal obligation to do so and You agree to
pay such Taxes if so invoiced.
5.
DATA PRIVACY AND SECURITY; CONFIDENTIALITY
5.1 If You choose, or You are
provided with, a user identification code, password or any other piece of
information as part of Our security procedures, You must treat such information
as confidential. You must not disclose it to any third party. We have the right
to disable any user identification code or password, whether chosen by You or
allocated by us, at any time, if in Our reasonable opinion You have failed to
comply with any of the provisions of these Terms.
5.2 Subject to the express
permissions of these Terms, You and Magic will protect each other’s
Confidential Information from unauthorized use, access or disclosure in the
same manner as each protects its own Confidential Information, but with no less
than reasonable care. Except as otherwise expressly permitted pursuant to these
Terms, each of us may use each other’s Confidential Information solely to
exercise our respective rights and perform our respective obligations under
these Terms and shall disclose such Confidential Information solely to those of
our respective employees, representatives and agents who have a need to know
such Confidential Information for such purposes and who are bound to maintain
the confidentiality of, and not misuse, such Confidential Information. The
provisions of this Section 6 shall supersede any non-disclosure agreement by
and between You and Magic entered prior to these Terms that would purport to
address the confidentiality of Your Data and such agreement shall have no
further force or effect with respect to Your Data, except to the extent any
provisions thereof are intended or expressly stated to survive.
5.3 Magic will maintain
commercially reasonable administrative, physical and technical safeguards to
protect the security, confidentiality and integrity of Your Data. These
safeguards may include encryption of Your Data in transmission (using SSL or
similar technologies) as described further in Our Privacy Policy.
5.4 You agree that Magic and
the service providers it utilizes to assist in providing the Service to You
shall have the right to access Your Account and to use, modify, reproduce,
distribute, display and disclose Your Data solely to the extent necessary to
provide the Service, including, without limitation, in response to Your support
requests. Any third party service providers We utilize will only be given
access to Your Account and Your Data as is reasonably necessary to provide the
Service and will be subject to confidentiality obligations. Magic may also access or disclose information
about You, Your Account, End-Customers, including Your Data, in order to (a)
comply with the law or respond to lawful requests or legal process; (b) protect
Magic’s or its customers’ or partners’ rights or property, including
enforcement of these Terms or other policies associated with the Services; (c)
act on a good faith belief that such disclosure is necessary to protect
personal safety or avoid violation of applicable law or regulation.
5.5 We collect certain
information about You, and End-Customers activities via Tin Can API’s (and
similar) as well as Your and their respective devices, computers and use of the
Service. We use, disclose, and protect this information as described in Our
Privacy Policy, and is incorporated into these Terms.
5.6 To the extent Magic
Processes any Personal Data on Your behalf in connection with use of the
Service by You, and/or End-Customers, Magic and You hereby agree that You shall
be deemed to be the data controller and Magic shall be deemed to be the data
processor as those terms are understood under the Directive (and any applicable
national legislation implementing the Directive). By utilizing the Service/Portal,
You consent, on behalf of You and Your End-Customers (and represent that You
have the authority to consent on behalf of Your End-Customers) to the
Processing of Your Data, including, without limitation, any Personal Data,
within Magic and to other authorized service providers pursuant to these Terms
and Our Privacy Policy within the India, United States and in other countries
and territories.
6.
CANCELLATION AND TERMINATION
6.1 You may elect to
terminate Your Account and subscription to the Portal at any time by emailing
us at support@magicsw.com and we would connect
with you to de-activate the portal, but You will remain liable for all charges
accrued up to that time, including full monthly charges for the month in which
You discontinued the Service. Unless Your Account and subscription to the
Service is so terminated, Your subscription to the Service will renew for a
Subscription Term equivalent in length to the then expiring Subscription Term.
Unless otherwise provided for in any Form, the Subscription Charges applicable
to Your subscription to the Service for any such subsequent Subscription Term
shall be Our standard Subscription Charges for the Service Plan to which You
have subscribed as of the time such subsequent Subscription Term commences.
6.2 No refunds or credits for
Subscription Charges or other fees or payments will be provided to You if You
elect to terminate Your subscription to the Service or cancel Your Account
prior to the end of Your then effective Subscription Term.
6.3 Magic strongly recommends
You to export all Your Data before any termination or cancellation of Your
Account. Following the termination or cancellation of Your subscription to the
Service and/or Your Account, We reserve the right to delete all Your Data in
the normal course of operation any time after the expiry of 30 days after the
cancellation or termination of Your Account. Your Data cannot be recovered once
it is deleted.
6.4 If You terminate Your
subscription to the Service or cancel Your Account prior to the end of Your then-effective
Subscription Term or We effect such termination or cancellation, in addition to
other amounts You may owe Magic, You must immediately pay any then unpaid
Subscription Charges associated with the remainder of such Subscription Term.
This amount will not be payable by You in the event You terminate Your
subscription to the Service or cancel Your Account as a result of a material
breach of these Terms by Magic, provided that You provide advance notice of
such breach to Magic and afford Magic not less than thirty (30) days to
reasonably cure such breach.
6.5 Magic reserves the right
to modify, suspend or terminate the Service (or any part thereof), Your Account
or End-Customers’ rights to access and use the Service, and remove, disable and
discard any of Your Data if We believe that You, or End-Customers have violated
these Terms. You will be liable to pay Magic any fees outstanding or due until
the date of termination. Unless legally prohibited from doing so, Magic will
use commercially reasonable efforts to contact You directly via email to notify
You when taking any of the foregoing actions, and provide You with an
opportunity to cure such breach within 15 days from notification by Magic to
You. Magic shall not be liable to You, End-Customers or any other third party
for any such modification, suspension or discontinuation of Your rights to
access and use the Service. Any suspected fraudulent, abusive, or illegal
activity by You, Agents or End-Customers may be referred to law enforcement authorities
at Our sole discretion. Magic shall not be liable to You or any third party for
any modification, suspension or discontinuation of the Service.
7.
DISCLAIMER OF WARRANTIES
THE WEBSITES AND THE SERVICE, INCLUDING ALL
SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”
BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, AND MAGIC EXPRESSLY DISCLAIMS ANY AND ALL CONDITIONS,
REPRESENTATIONS, WARRANTIES OR OTHER TERMS, WHETHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
YOU ACKNOWLEDGE THAT MAGIC DOES NOT WARRANT THAT
THE SERVICE OR WEBSITES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR
FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE
OBTAINED BY YOU FROM MAGIC OR THROUGH THE SERVICE OR WEBSITES SHALL
CREATE ANY WARRANTY NOT EXPRESSLY STATED IN
THESE TERMS.
THE CONTENT ON OUR WEBSITES IS PROVIDED FOR
GENERAL INFORMATION ONLY. IT IS NOT INTENDED TO AMOUNT TO ADVICE ON WHICH YOU
SHOULD RELY. YOU MUST OBTAIN PROFESSIONAL OR SPECIALIST ADVICE BEFORE TAKING,
OR REFRAINING FROM, ANY ACTION ON THE BASIS OF THE CONTENT ON OUR WEBSITES.
8.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT WILL MAGIC, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES,
SUPPLIERS OR LICENSORS BE LIABLE TO ANY PERSON FOR (A): ANY INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, SALES, GOODWILL, USE OR
CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED
SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF
LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF
STATUTORY DUTY,NEGLIGENCE OR OTHERWISE, EVEN IF MAGIC HAS BEEN ADVISED AS TO
THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF MAGIC
AND ITS AFFILIATES, OFFICERS, EMPLOYEES, SUPPLIERS AND LICENSORS, RELATING TO
THE SERVICES WILL BE LIMITED TO AN AMOUNT EQUAL TO TWELVE MONTHS OF THE
SUBSCRIPTION FEE FOR THE SERVICE PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING
RISE TO SUCH LIABILITY. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS
REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL
PURPOSE.
9.
ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
9.1 You may not, directly or
indirectly, by operation of law or otherwise, assign all or any part of these
Terms or Your rights under these Terms or delegate performance of Your duties
under these Terms without Magic’s prior consent. We may, without Your consent,
assign Our agreement with You to any member of Magic or in connection with any
merger or change of control of Magic or the sale of all or substantially all of
Our assets provided that any such successor agrees to fulfill its obligations
pursuant to these Terms. Subject to the foregoing restrictions, these Terms
will be fully binding upon, inure to the benefit of and be enforceable by the
parties and their respective successors and assigns.
9.2 We may amend these Terms
from time to time, in which case the new Terms will supersede prior versions.
Please read these Terms of use carefully before You start to use our Service or
Websites, as these will apply to Your use of the Service and our Websites.
Please check these Terms from time to time to take notice of any changes we
made, as they will be binding on You. We will notify You not less than ten (10)
days prior to the effective date of any such amendment and Your continued use
of the Service following the effective date of any such amendment may be relied
upon by Magic as Your consent to any such amendment. Magic’s failure to enforce
at any time any provision of these Terms does not constitute a waiver of that
provision or of any other provision of the Terms.
10.
SEVERABILITY; NO WAIVER
If any provision in these Terms is held by a
court of competent jurisdiction to be unenforceable, such provision shall be
modified by the court and interpreted so as to best accomplish the original
provision to the fullest extent permitted by applicable law, and the remaining
provisions of these Terms shall remain in effect. The failure of Magic to
exercise any right provided for herein shall not be deemed a waiver of any
right hereunder.
11.
EXPORT COMPLIANCE AND USE RESTRICTIONS; GOVERNMENT END USE PROVISIONS
The Service and other Software or components of
the Service which Magic may provide or make available to You, Your Affiliates,
Agents or End-Customers may be subject to U.S. (or other territories) exports
control and economic sanctions laws. You agree to comply with all such laws and
regulations as they relate to access to and use of the Service, Software and
such other components by You, Your Affiliates and End-Customers. You shall not
access or use the Service if You are located in any jurisdiction in which the
provision of the Service, Software or other components is prohibited under U.S.
or other applicable laws or regulations (a “Prohibited Jurisdiction”)
and You shall not provide access to the Service to any government, entity or
individual located in any Prohibited Jurisdiction. You represent, warrant and
covenant that (i) You are not named on any U.S government (or other government)
list of persons or entities prohibited from receiving U.S. exports, or
transacting with any U.S. person, (ii) You are not a national of, or a company
registered in, any Prohibited Jurisdiction, (iii) You shall not permit
End-Customers to access or use the Service in violation of any U.S. or other
applicable export
embargoes, prohibitions or restrictions, and
(iv) You shall comply with all applicable laws regarding the transmission of
technical data exported from the United States and the country in which You,
Your Affiliates, Agents and End-Customers are located. If You are a U.S.
federal government department or agency or contracting on behalf of such
department or agency, this Service is a “Commercial Item” as that term is
defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and
“Commercial Computer Software Documentation”, as those terms are used in 48
C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48
C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Service is licensed
to You with only those rights as provided under the terms and conditions of
these Terms.
12.
RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These
Terms do not create a partnership, franchise, joint venture, agency, and
fiduciary or employment relationship among the parties.
13.
SURVIVAL
Sections for Intellectual Property Rights,
Billing, Plan Modification and Payments, Data Privacy and Security;
Confidentiality, Cancellation and Termination, Disclaimer of Warranties, Limitation
of Liability, Survival, Governing Law and Dispute Resolution shall survive any
termination of our agreement with respect to use of the Service by You, or
End-Customers. Termination of such agreement shall not limit Your or Magic’s
liability for obligations accrued as of or prior to such termination or for any
breach of these Terms.
14.
NOTICES; CONSENT TO ELECTRONIC COMMUNICATIONS
You agree that we may send You communications or
data regarding Your Account and the Service, including but not limited to: (a)
notices about Your use of the Services, including any notices concerning
violations of use; (b) updates; and (c) any other issues related to Your
Account, via electronic mail.
All notices to be provided by Magic to You under
these Terms may be delivered in writing (i) by nationally recognized overnight
delivery service (“Courier”) or mail to the contact mailing address provided by
You on any Form; or (ii) electronic mail to the electronic mail address
provided for Your Account. Our address for a notice to us in writing by Courier
or mail is: Magic Software Inc, 31W, 34th Street, #7011, 7th Floor, New
York, NY 10001.
All notices shall be deemed to have been given immediately upon delivery by
electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2)
business days after being deposited in the mail or with a Courier as permitted
above.
15.
GOVERNING LAW AND DISPUTE RESOLUTION
15.1 These Terms shall be
governed by the laws of the United State of America without regard to conflict
of laws principles. You hereby expressly agree to submit to the exclusive
personal jurisdiction of the federal and state courts of the United State of
America, for the purpose of resolving any dispute relating to the Terms or
access to or use of the Service by You, Your Affiliates, Agents or
End-Customers.
15.2 Any dispute, claim or
controversy arising out of or relating to these Terms or the breach,
termination, enforcement, interpretation or validity thereof, including the
determination of the scope or applicability of these Terms to arbitrate, shall
be determined the court in United State of America.
16.
DEFINITIONS
When used in these Terms with the initial
letters capitalized, in addition to terms defined elsewhere in these Terms, the
following terms have the following meanings:
Account: means any Magic
accounts or instances created by or on behalf of Magic User
Affiliate: means, with
respect to a party, any entity that directly or indirectly controls, is
controlled by, or is under common control with such party, whereby “control”
(including, with correlative meaning, the terms “controlled by” and “under
common control”) means the possession, directly or indirectly, of the power to
direct, or cause the direction of the management and policies of such person,
whether through the ownership of voting securities, by contract, or otherwise.
API: means the application programming
interfaces developed and enabled by Magic that permits a Magic User to access
certain functionality provided by the Service.
Confidential Information: means all
information disclosed by You to Magic or by Magic to You which is in tangible
form and labeled “confidential” (or with a similar legend) or which a
reasonable person would understand to be confidential given the nature of the
information and circumstances of disclosure. For purposes of these Terms, Your
Data shall be deemed Confidential Information. Notwithstanding the foregoing,
Confidential Information shall not include information that (a) was already
known to the receiving party at the time of disclosure by the disclosing party;
(b) was or is obtained by the receiving party by a third party not known by the
receiving party to be under an obligation of confidentiality with respect to
such information; (c) is or becomes generally available to the public other
than by violation of these Terms; or (d) was or is independently developed by
the receiving party without use of the disclosing party’s Confidential
Information.
Directive: means Directive
95/46/EC on the protection of individuals with regard to the processing of Personal
Data and on the free movement of such data.
Documentation: means any written
or electronic documentation, images, video, text or sounds specifying the
functionalities of the Service provided or made available by Magic to You, Your
Affiliates, Agents or End-Customers through the Service or otherwise.
End-Customer: means any person
or entity other than Magic, using or accessing the portal and/or using the
Service.
Form: means any service order form
executed or approved by You and Magic with respect to Your subscription to the
Service, which form may detail, among other things, the number of Agents
authorized to use the Service under Your subscription to the Service and the
Service Plan(s) applicable to Your subscription to the Services.
Magic: means Magic Software Inc. In these
Terms, Magic Software Inc. may also be referred to as “Magic”, “We” and “Our.””
Other Services: means third-party
products, applications, services, software, products, networks, systems,
directories, websites, databases and information that the Service links to, or
which You may connect to or enable in conjunction with the Services, including,
without limitation, Other Services which may be integrated to Your Account.
Personal Data: means data
relating to a living individual who is or can be identified either from the
data or from the data in conjunction with other information that is in, or is
likely to come into, the possession of the data controller (as defined in the
Directive).
Processing/To Process: means any
operation or set of operations which is performed upon Personal Data, whether
or not by automatic means, such as collection, recording, organization,
storage, adaptation or alteration, retrieval, consultation, use, disclosure by
transmission, dissemination or otherwise making available, alignment or
combination, blocking, erasure or destruction.
Service: means the on-demand Magic
service solution and tools provided by Magic, including, individually and
collectively, Software, the API and any Documentation. Any new or modified
features added to or augmenting or otherwise modifying the Service or other
updates, modifications or enhancements to the Service (“Updates”) are also
subject to these Terms and Magic reserves the right to deploy Updates at any
time. You understand and agree that the Services may be sold separately or as a
bundle; and, that individual Services may be subject to separate and distinct
Service Plans.
Service Plan(s): means the service
plan(s) and the functionality and services associated therewith (as detailed on
the Websites) for which You subscribe. Basic Plan (free) & Pro Account
(Subscription based).
Software: means software
provided by Magic (either by download or access through the internet) that
allows You & roles created by you or End-Customer to use any functionality
in connection with the Service.
Subscription Term: means the period
during which You have agreed to subscribe to the Service with respect to any
individual Agent.
Websites: means getmagicbox.com
and getmagicbox.com/help and other websites that Magic operates.
Your Data: means all
electronic data, text, messages or other materials submitted to the Service by
You, Your Affiliates and End-Customers in connection with Your use of the
Service, including, without limitation, Personal Data.