These Terms of Service constitute a legal agreement; please read them carefully.
Magmic provides downloadable mobile entertainment content, such as games, news and other information data via the Internet, SMS, MMS, WAP, BREW, IVR and other means of mobile content delivery to certain compatible mobile devices (the "Service" or the " Magmic Service").
You acknowledge and agree that the Service is for your personal use on the mobile device designated during the Download or Registration. You acknowledge and agree that the Service is a proprietary product of Magmic and/or its licensors, and that all right, title and interest in and to the Service, including associated intellectual property rights, is and shall remain with Magmic and/or its licensors. All materials on the Site are owned by Magmic or by third parties and posted on the Site by virtue of a license, grant or some other form of agreement between Magmic and the third party. You agree that all rights not expressly granted herein are reserved by Magmic. You agree that you may not make commercial use of the Service. Please note that the Magmic Service is not compatible with all mobile devices; please check our Web Site for details concerning content availability for certain devices.
a. Access to the Service. In order to use the Magmic Service, you must have a mobile communications subscription with a participating carrier or otherwise have access to a mobile communications network for which Magmic makes the Service available (e.g. a prepaid plan) as well as any carrier services necessary to download content (access to your carrier's data plan), and pay any service fees associated with any such access. In addition, you must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile handset or other mobile access device that is in working order and suitable for use in connection with the Service. You are responsible for ensuring that your equipment and/or software do not disturb or interfere with Magmic's operations. Any equipment or software causing interference shall be immediately disconnected from the Service and Magmic shall have the right to immediately terminate this ToS Agreement. If any upgrade in or to the Service requires changes in your equipment or software, you must effect these changes at your own expense. Unless explicitly stated otherwise, any new or additional features that augment or enhance the current Service, including the release of new products and services, shall be subject to the terms and conditions of this ToS Agreement.
b. Individual Downloads and Subscription Plans. When you purchase Individual Downloads, sign up for a Subscription Plan or use the Service in any way, standard messaging rates and the terms and conditions of your carrier service agreement will apply. Please note that the Service and/or Individual Downloads may not be available for use on all mobile devices. Check with your carrier service provider for details. If you Download an item of content that is not supported for use on your mobile handset, Magmic will offer comparable content in a format supported by your handset or offer a refund of the purchase price.
i. Individual Downloads. Magmic may offer through its service individual Downloads for one-time non-recurring charges ("Individual Downloads"). The price by content type for Individual Downloads, if any, will be listed on the Magmic web site. The details of the Individual Downloads are incorporated into this ToS Agreement by this reference and form a part of this ToS Agreement. All terms and conditions of this ToS Agreement shall govern any Individual Downloads.
ii. Subscription Plans. Magmic is offering through its Service mobile entertainment content such as games and themes, which are available on a renewable subscription basis. All terms and conditions of this ToS Agreement shall govern Subscriptions.
The Subscription between you and Magmic shall begin when Magmic, upon your request, has provided you with access to the Service (such access may be based on a personal username and password generated for that purpose or on other data that Magmic deems sufficient for your identification such as your mobile telephone number). Access to the Service can be provided by delivering to you downloadable mobile entertainment content of the content category you subscribed to (e.g., by delivering a ringtone or an info news - SMS message) or by enabling you to download the product (e.g., by delivering a WAP-Push link or a PIN for download of the downloadable mobile entertainment content on Magmic's website) or by providing access to the mobile entertainment content (e.g., by enabling MSISDN for this product). Subscriptions will be renewed each month and a new subscription fee shall become due for the concerned subscription period. Each Subscription shall remain in effect until terminated and/or cancelled by you or Magmic according to Section 8 of this ToS Agreement.
The periodic flat fee shall become due for every Subscription period irrespective of whether or not you actually download any content during any particular subscription period; the consideration for the periodic flat fee shall solely be the periodic provision of the right to download, receive and/or access downloadable mobile entertainment content.
c. Registration Data. If you register for the Service, you agree to: (i) provide true, accurate and complete information about yourself as prompted by the purchase registration form ("Registration Data") and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If Magmic has reasonable grounds to suspect that the Registration Data is untrue, inaccurate or incomplete, Magmic has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). You acknowledge and agree that we may send you important information and notices regarding your account and our Services. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate Registration Data, including, but not limited to, your failure to receive critical information about the Service or your account. You further agree that we (ourselves or through third party service providers) are authorized to verify such Registration Data.
d. Username and Password. If you opt to register for the Service on our Site, you may be required to establish an account and obtain a username and password. You authorize us to process any and all account transactions initiated through the use of your username and password. You are solely responsible for maintaining the confidentiality of your username and password and must immediately notify us of any unauthorized use of your username and password. You acknowledge and agree that you are responsible for any unauthorized activities, charges and/or liabilities made through the use of your username and password. In no event will Magmic be liable for the unauthorized use or misuse of your username and/or password. Magmic may need to change usernames allocated to certain of its Services and reserves the right to do so. You will be informed if this is necessary.
e. Access without Registration. Magmic may provide you with access to some Services without you registering as a user, such as sign-up via SMS or via Individual Download purchases. In each such case your identification is based on means of identification that we deem appropriate, such as your mobile telephone number or email address.
f. License to Download(s). You acknowledge and agree that the Download(s) made available as part of the Service are owned by Magmic, its affiliate and/or licensors, as applicable, and are protected by intellectual property laws. Magmic hereby grants, and you hereby accept, a limited, non-exclusive, non-transferable, non-assignable, revocable, personal right and license to download, install and/or use the object code version of the Download(s) and the Service on a designated compatible mobile device solely for your own personal non-commercial use. You further acknowledge and agree that you may not reproduce, duplicate, modify, perform, transfer, post, distribute, sell, create derivative works of or otherwise use or make available the Download(s) except as expressly provided in this ToS Agreement. You may not, or attempt to (or otherwise authorize, encourage or support others' attempts to) circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Service, including, but not limited to, any Download(s). No license is granted to you by this ToS Agreement in the human readable code, known as the source code, of the mobile content downloaded on your mobile device, and no rights are granted to you by this ToS Agreement in any patents, copyrights, trade secrets, trademarks or any other rights in respect of the mobile content downloaded on your mobile device.
This ToS Agreement will terminate immediately, without notice, if you fail to comply with any term or condition of this ToS Agreement. Upon a termination of this ToS Agreement, you agree to immediately remove all downloaded mobile entertainment content from your wireless communications device.
g. Interruptions or Discontinuation of Service. Magmic reserves the right at any time and from time to time to modify, suspend, discontinue or permanently cancel the Service, or portions thereof, with or without notice to you. If the Service, or any part thereof, for which you subscribe is permanently discontinued or cancelled by Magmic we will cancel your Subscription Plan and reimburse any pre-paid fees related to such Service, except for termination made in accordance with Section 8 of this ToS Agreement.
h. Carriers supported on the Program. Magmic currently supplies the following carriers: AT&T, Boost Mobile, Cellular One (Formerly Dobson), Cellular South, Cincinnati Bell, Cricket (Leaps Wireless), Nextel, Sprint, T-Mobile, US Cellular, Virgin Mobile.
i. Third Party Products and Services. We may make available or provide access to products and services of independent third parties either directly or via links to websites operated by such third parties. Such products or services shall be purchased and/or obtained directly from such third party. You acknowledge and agree that MAGMIC SHALL NOT BE A PARTY TO, OR IN ANY WAY RESPONSIBLE FOR, ANY TRANSACTION CONCERNING PRODUCTS OR SERVICES MADE AVAILABLE FROM SUCH THIRD PARTIES OR FOR ANY CONTENT OR INFORMATION PRESENTED IN CONNECTION WITH ANY PRODUCTS OR SERVICES OF THIRD PARTIES.
j. Magmic Refund Policy. Purchased products, including games, themes, tones and other applications from Magmic.com, Bplay.com or Winplay.com are final. There will be no refunds on products purchased from Magmic. If you do not make use of the device selection tool, or purchase a game that is not compatible with your device, you will not be refunded. Duplicate purchases may be refunded, but only with the following information provided:
If a duplicate purchase is not found with the above information, you will need to contact your banking institution to verify that more than one transaction did indeed go through on the date in question. Purchases made 24 hours or more from each other are not considered duplicate purchases. Each purchase made is valid for one download/activation of each product purchased.
k. Device Changes/Upgrades. For device changes/upgrades, Magmic offers a unique, competitive plan for users changing devices for any reason. This plan only covers products purchased from Magmic's direct-to-consumer portals (e.g., Magmic.com, Bplay.com or Winplay.com). Magmic's distribution partners (e.g., Handango, Handmark) have their own unique policies, and as such, have no part in offers provided by Magmic. If you purchased a Magmic game from another channel, please consult with that channel regarding their refund or upgrade policies.
If your current device fails or you change devices, Magmic offers the following:
This is a free service for Magmic customers only. It does not include purchases made through partner sites. There are no exceptions. Please note that we are unable to accommodate changes between platforms. This means that BlackBerry to Windows Mobile phone exchanges (and vice versa), for instance, will not be honored.
You agree that you will be personally responsible for your use of the Site, and you agree to release, indemnify, defend and hold harmless Magmic, its subsidiaries, and affiliates, together with their respective officers, directors, shareholders, contractors, agents, employees, licensors and assigns from and against all claims, liabilities, damages, costs and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with (a) your use of the Site and its Service, including your conduct; (b) your failure to use the Site; (c) your breach or alleged breach of this ToS Agreement; (d) your breach or alleged breach of the copyright, trademark, proprietary or other rights of third parties, and (e) the breach by you of your representations and warranties set forth herein. Magmic reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and in such case, you agree to fully cooperate with Magmic's defence of such claim.
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO ANY DOWNLOAD(S), IS SOLELY AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR MOBILE DEVICE OR LOSS OF DATA THAT MAY RESULT FROM YOUR USE OR DOWNLOAD. YOU AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS," AND "AS AVAILABLE" BASIS, EXCEPT AS OTHERWISE NOTED IN THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT MAGMIC SHALL HAVE NO LIABILITY TO YOU, OR TO ANY THIRD PARTY, FOR ANY MODIFICATION, SUSPENSION, DISCONTINUANCE OR TERMINATION OF THE SERVICE, OR ANY PART THEREOF. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MAGMIC MAKES NO WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OUR SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, YOU AGREE THAT MAGMIC'S ENTIRE LIABILITY TO YOU OR ANY THIRD PERSON, AND YOUR OR ANY THIRD PERSON'S EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO THE SERVICE PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID FOR SUCH SERVICE DURING THE TERM OF THIS AGREEMENT. EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, MAGMIC, ITS LICENSORS AND CONTRACTORS (INCLUDING ANY THIRD PARTIES PROVIDING ALL OR PART OF THE SERVICE) SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES EVEN IF MAGMIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW IN SUCH STATES.
Except as otherwise set forth herein, all right, title and interest in and to any intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Service ("Magmic Intellectual Property Rights") are owned by Magmic or its licensors, and you agree to make no claim of interest in or ownership of any such Magmic Intellectual Property Rights. You acknowledge that no title to the Magmic Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Service, other than the rights expressly granted in this ToS Agreement.
The amount of the periodic fees for the Subscriptions to the Service are identified and available as described above in Section 3(b) i. You agree to pay the periodic fee that corresponds to the Subscriptions you select in accordance with the fees in effect at the time of your order. Unless otherwise indicated, the charges shall be invoiced either on the bill from your participating mobile communications carrier, or on your credit card, depending on your selected method of payment. All fees are subject to change upon notice from Magmic. Magmic will provide you with reasonable notice of such change. If you do not accept the new fees (which will be applicable on a prospective basis only), you will have fourteen (14) days from the date of such notice to cancel your subscription plan and/or your account effective at the end of the calendar month. All fees are due immediately and are non-refundable, except as otherwise expressly noted.
To cancel your Subscription Plan, send an e-mail to firstname.lastname@example.org indicating your mobile phone number and either your device PIN or "Name On Device". The termination shall become effective immediately but you will still be liable for any new fees that were not cancelled within the time period specified in Section 7 of this ToS Agreement. To cancel your Premium SMS Subscription Plan send a text message with the text "STOP" to 624642, or such other number as may be designated on our Site. You agree that Magmic, at its sole discretion, may at any time terminate your use of the Service and Subscription Plan(s) or individual services provided via the Service, if Magmic believes that you have violated or acted inconsistently with this ToS Agreement. You further agree that Magmic has the right to immediately terminate your use of, or access to, this Site at any time if Magmic decides at its sole discretion that you have breached any term or condition of this ToS Agreement or any relevant law, rule or regulation or you have engaged in conduct that Magmic considers to be inappropriate or unacceptable. You agree that upon termination of your access to the Service under any provision of this ToS Agreement, Magmic may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Magmic shall not be liable to you or any third party for any termination of your access to the Service. If you cancel your account or Subscription Plan for any reason, Magmic will not refund any of your fees paid to date, except as expressly provided in this ToS Agreement.
Magmic does not knowingly accept unsolicited submissions including, without limitation, submissions of scripts, story lines, articles, fan fiction, characters, drawings, information, suggestions, ideas or concepts. Magmic's policy is to simply delete any such submission without reading it or forwarding it to other Magmic staff. Therefore, any similarity between an unsolicited submission and any elements in any Magmic creative work including, without limitation, a film, series, story, title or concept would be purely coincidental. If unsolicited submissions are sent to Magmic via this Site, however, these submissions become the property of Magmic and may be used, copied, sublicensed, adapted, transmitted, distributed, publicly performed, published, displayed or deleted as Magmic sees fit. You agree that you are not entitled to any compensation, credit or notice whatsoever and that by sending an unsolicited submission you waive the right to make any claim against Magmic, its parents or affiliates relating to unsolicited submissions, including, without limitation, unfair competition, breach of implied contract or breach of confidentiality.
a. Notices And Announcements. Except as expressly provided otherwise herein, all notices to Magmic shall be in writing and delivered via overnight courier or certified mail, return receipt requested to:
126 York Street, 4th Floor
Ottawa, Ontario, Canada K1N 5T5
Magmic shall serve notices related to this contract by posting them on the Website or by sending them to the postal address or e-mail address you have given to Magmic or as a text message to your mobile telephone number associated with your account. Notices sent by mail shall be deemed received seven days after they were sent. Notices posted on the Website or sent by e-mail or as a text message shall be deemed received on the weekday following the day when they were posted or sent.
b. Entire ToS Agreement.You agree that this ToS Agreement constitutes the entire, complete and exclusive agreement between you and us regarding the Service and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this ToS Agreement.
c. Severability. This ToS Agreement operates to the fullest extent permissible by law. If any provision of this ToS Agreement is unlawful, void or unenforceable that provision is deemed severable from this ToS Agreement and does not affect the validity and enforceability of any remaining provisions.
d.Governing Law. This ToS Agreement is governed in all respects by and construed in accordance with the laws of the Province of Ontario without given effect to any principles of conflicts of law. You agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario, Canada for any resolution of any dispute, action or proceeding arising in connection with this ToS Agreement or your use or non-use of the Site, and you further irrevocably waive any right you may have to trial by jury in any such dispute, action, or proceeding. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
e. Waiver. No waiver of any provision of this ToS Agreement shall be effective unless it is in writing and signed by an authorized representative of Magmic. The remedies of Magmic under this ToS Agreement shall be cumulative and not alternative, and the election of one remedy for a breach shall not preclude pursuit of other remedies. The failure of a party, at any time or from time to time, to require performance of any obligations of the other party hereunder shall not affect its right to enforce any provision of this ToS Agreement at a subsequent time, and the waiver of any rights arising out of any breach shall not be construed as a waiver of any rights arising out of any prior or subsequent breach.
f. Headings. The section headings appearing in this ToS Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
g. Survival. In the event this ToS Agreement terminates as provided herein, Sections 2(b), 2(d), 2(f), 4, 5, 6 and 9and 10 of this ToS Agreement shall survive such expiration or termination.