Terms and Conditions
These Platform Terms and Conditions were last updated and are effective as of November 15, 2019.
1. SCOPE OF TERMS AND CONDITIONS
These Terms and Conditions (this “Agreement” or the “Platform Terms”) govern the use of the U.S. website and mobile applications/apps (as applicable, the “Platform”) operated by Magical I Am, Inc. (“we,” “us,” “our,” or “Company”). These Platform Terms also govern your access to and use of any app, application, software, communications systems, databases and other information and content made available on the Platform, and purchases of services and products offered by Company through or in connection with the Platform (which, collectively with the Platform, constitute the “Services”).
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD LEAVE THIS PLATFORM IMMEDIATELY.
These Platform Terms constitute a legal agreement between you and us. By “you” or “your” we mean, collectively and individually, you, the person or entity accessing, using or viewing the Platform (including this Agreement) or any portion thereof, and any party or legal entity you own, control or for which you act as an agent accessing the Platform (including this Agreement), or who has opportunity to read this Agreement upon accessing this Platform. If you are an employee agent or owner of any entity (such as a partnership, corporation, limited liability company or the like), the terms “you” or “your” include such entity, and you represent that you have the legal capacity to bind such entity to the terms of this Agreement.
You agree to and will comply with any applicable payment terms or shipping terms that we establish from time to time that relate to your use of the Platform or purchase of Services. By accessing, browsing and/or using any of the Platform, you acknowledge that you have read, understand, and agree to be bound by this Agreement and to comply with all applicable laws and regulations, including U.S. export and re-export control laws and regulations connected with your use of the Platform.
Further, certain areas of the Platform and the Services, including, without limitation, sales information, promotional programs, giveaways, contests and the like may require you to register or provide certain information with or to us and/or be subject to additional terms and conditions of use; and the we will provide you with notice of such additional terms and conditions on such registration. Unless so indicated in such agreement, this Agreement does not modify, alter or amend any other agreement you have entered or will enter into with us.
2. ACCOUNT PASSWORD AND USER ID
The Services offered via the Platform or your participation in various promotional programs giveaways, contests, product ordering and the like may require that: (i) you become a registered user of the Services, you must receive or establish one or more confidential individually identifiable passwords (a “Password”); (ii) you utilize a name or number (a “Username”) that identifies your participation in such program, contest, give-away purchases or the like and for purposes of tracking purchases or usage of the Platform; or (iii) you obtain and utilize such other accounts or passwords in the manner we designate. Maintaining the confidentiality and security of your Username and Password is solely your responsibility. Accordingly, you will maintain the security and confidentiality of them. You must not, and agree not to divulge your Password or the Username and/or other account information to any third party, except as directed in accordance with security policies and procedures that we may establish from time to time. You are entirely responsible for all activities that occur through your Username and/or Password(s), and you agree to notify us immediately about any unauthorized use of them, or any other breach of security that you become aware of. You agree that we and our affiliates will not be responsible for any losses incurred in connection with any misuse of or failure to Passwords or Username, nor will they have any responsibility to you whatsoever, directly or indirectly, for them if you fail to comply with this Agreement.
3. PUBLIC FORUMS AND INAPPROPRIATE USER CONDUCT ON THE PLATFORM
We may offer chat rooms, blogs, message boards, bulletin boards, or similar public forums on this Website where you and other users of our Platform can communicate. Harassment in any manner or form on the Platform, including via email, chat, or by use of obscene or abusive language, is strictly forbidden. Impersonation of others, including any of our employees, hosts, or representatives, as well as other members or visitors on the Platform is prohibited. You may not upload to, distribute, or otherwise publish through the Platform any content which is libelous, defamatory, obscene, threatening, invasive of privacy or publicity rights, abusive, illegal, or otherwise objectionable which may constitute or encourage a criminal offense, violate the rights of any party or which may otherwise give rise to liability or violate any law. You may not upload commercial content on the Platform or use the Platform to solicit others to join or become members of any other commercial online service or other organization.
Any conduct by you that we believe restricts or inhibits any other user from using or enjoying the Platform, is harmful or disruptive to our Platform or which could breach any agreement between us and any third party is prohibited. You agree to use the Platform only for lawful purposes. We reserve the right to terminate your access, or suspend any third party's access, to all or part of the Platform, without notice, for any conduct that we believe is harmful to us, our affiliates, suppliers, vendors, or any other third party, interferes with or is harmful to our relationships with third parties, is in violation of any applicable law, or is harmful to the interests of another user or any third party.
4. PRODUCTS AND SERVICES AVAILABILITY
Product and Services availability in connection with the Platform is subject to change without notice. Through the Platform the Company may provide access to international, state, regional, market specific or time sensitive information, which information may contain references to Services and other products, programs, and services that are not currently available in your country, state or market area. References made by Company to such products, programs and services does not necessarily mean or otherwise imply that the products, programs and services announced or discussed are available at all or any times in all market areas. We reserve the right, at any time and from time to time, to modify or discontinue, temporarily or permanently, some or all of the Materials (defined below), the Platform or Services, with or without notice. This includes the right to modify, discontinue or remove any content, postings, links, pages, services, or other materials at any time and for any reason. You agree that we will not be liable to you for any modification, general suspension or discontinuance of any Platform, Services or Materials. We may refuse or restrict anyone from access to any or all of the Platform, Materials or Services at any time.
In addition, although we strive at all times to maintain the accuracy of information maintained on the Platform (including pricing information for product, services and the Services), occasionally pricing or other information errors may occur on the Platform. In the event that a product, service or Services available through any of the Platform are mistakenly listed at an incorrect price or with other incorrect information, we reserve the right to refuse or cancel any orders placed for any such product, service or Services listed at the incorrect price or based on incorrect information.
5. OWNERSHIP OF PLATFORM, CONTENT AND MATERIALS
All content included on the Platform, including all trademarks, service marks and logos (collectively “Marks”), artwork, graphics, button icons, images and software (all of the foregoing collectively with the Marks, the “Materials”), is our property or our content suppliers’ or licensors’ property and protected by U.S. and international copyright and trademark laws. The compilation (meaning the collection, arrangement and assembly) of all content on the Platform is our exclusive property and protected by U.S. and international copyright laws. All software used on the Platform is our or our software suppliers’ or licensors’ property and protected by U.S. and international copyright laws and other intellectual property protections. Except as otherwise incorporated in rate production work, the content and software on the Platform may be used as a shopping resource. Any other use, including the reproduction, modification, distribution, transmission, republication, display, removal or deletion of the Materials on the Platform by you, in whole or in part, is strictly prohibited. Nothing contained in this Agreement will be construed as conferring to you in any manner, whether by implication, estoppel or otherwise, any license, title, or ownership of or to any intellectual property right of us or any third party. Except as expressly permitted by this Agreement or permitted by the fair use privilege under the U.S. copyright laws, you may not upload, post, reproduce, or distribute in any way Materials protected by copyright, or other proprietary right, without obtaining permission of the owner of the copyright or other proprietary right. Any of our or other third parties’ intellectual property available on or through the Platform may not be used in connection with any product or Service that is different than the product or service with which it is connected to on the Platform or in any manner that is likely to cause confusion among customers, disparages or discredits us or a third party or diminishes the value of our or a third party's intellectual property.
Without limiting the foregoing, the Marks, including without limitation, trademarks, trade names, logos, color schemes, service marks, slogans, and similar means of identifying products or services associated with us displayed on any web pages or e-mail sites as part of the Platform, including without limitation, the term “Magical I Am” are our or our licensors’ registered and/or common law, trademarks, trade names, copyrights or other marks or intellectual property. Other than the trademark, service marks or Copyrights of third parties (other than us) we designate that are clearly indicated as such by a designation of an “®” or “©” followed by a clear indication of the identity of such party claiming ownership which are posted to or incorporated into the Platform or the Services (collectively, “Third Party Marks”), all content and Materials on the Platform including, without limitation, the Marks, button icons, images, audio clips, and software, copyrights, patents and other similar forms of intellectual property included in the Services, are our property or our licensors’ and are protected by U.S. and international copyright, patent, trademarks, and other proprietary rights and intellectual property rights laws. No copying or exploitation of Materials or the Services is permitted without our express written permission and any other applicable copyright owner. Without limiting, but subject to the foregoing, except as contemplated by your participation in consumer use of the Platform to purchase products or Services:
(a) You may not copy, reproduce, republish, upload, post, transmit, sell, distribute, transfer or modify any of the content, data, information or Materials found on the Platform;
(b) You will not use the Marks or other Materials on any site which you operate, authorize or control without our express written permission;
(c) You may not use the Marks or other Materials in any search engine descriptions, content, meta-tags, “white lettering”, key words, or other means of directing or influencing web traffic to any website or e-mail operated, controlled or authorized by you without our express written permission and your doing so constitutes a violation of our rights under U.S. federal law, U.S. states’ laws, and other international laws and a breach of this Agreement;
(d) You will not adopt or use any names, trademarks, slogans, trade names, trademarks, service marks, e-mail addresses, URLs, meta-tags, key words, search descriptions or the like that are the same or are confusingly similar to the Marks or other Materials. You will not submit information to be maintained or displayed by search engines which incorporates the Marks or any Marks or other Materials that are confusingly similar to the Marks or other Materials. You acknowledge that you do not acquire any ownership or license rights by virtue of downloading the Marks or Materials from the Services or by virtue of your resale of the Services.
All rights not expressly granted under this Agreement are expressly reserved to us. If you believe your rights under applicable copyright laws are being infringed, you may notify our designated agent by emailing firstname.lastname@example.org
6. WE RESERVE THE RIGHT TO REVISE THESE PLATFORM TERMS
The Materials published on the Platform may include technical inaccuracies or typographical errors. Changes – including, without limitation, quoted prices, delivery times, payment policies and the like – may be made periodically to the Materials. We may also make improvements and/or changes in the Services and other products and other services and/or the programs or policies described in the Materials at any time without notice. We reserve the right, at any time and from time to time, to update, revise, supplement and to otherwise modify this Agreement, and to impose new or additional rules, policies, terms or conditions on your use of the Platform or the Services. Such updates, revisions, supplements, modifications and additional rules, polices, terms and conditions (collectively referred to in this Agreement as “Additional Terms”) will be effective immediately and incorporated into this Agreement upon our publishing them on the Platform.
All such Additional Terms are and will be incorporated into this Agreement by this reference. We will post at the top of these Platform Terms the date that modifications were last made, which should alert you to any changes since your last visit to the Platform. Your continued use of the Platform is your agreement to the Additional Terms and the Platform Terms as so revised.
8. THIRD PARTY LINKS AND PROMOTIONS
9. CHILDREN’S PRIVACY AND PLATFORM AGE LIMITATIONS
10. DISCLAIMERS AND LIMITATIONS OF LIABILITY
(a) THE MATERIALS AND OTHER CONTENT MADE AVAILABLE BY THE COMPANY ON THE PLATFORM IS NOT INTENDED AS ANY FORM MEDICAL OR OTHER PROFESSIONAL ASSESSMENT OR DIAGNOSIS OF THE LEARNING CAPABILITIES, STYLES OR OTHER CONDITIONS OF ANY INDIVIDUAL. IF ANY SUCH ASSESSMENT OR DIAGNOSIS IS SOUGHT, A MEDICAL OR OTHER PROFESSIONAL TRAINED IN ASSESSING THE LEARNING CAPABILITIES, STYLES OR OTHER CONDITIONS OF INDIVIDUALS SHOULD BE CONSULTED.
(b) YOUR USE OF THE PLATFORM AND THE SERVICES ARE AT YOUR SOLE RISK. THE PLATFORM AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OF TITLE OR NONINFRINGEMENT. WE DO NOT WARRANT THAT THE PLATFORM OR SERVICES WILL BE AVAILABLE OR OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. IN ADDITION, WE DO NOT WARRANT THAT INFORMATION AVAILABLE ON OR THROUGH THE PLATFORM INCLUDING, WITHOUT LIMITATION, POSTED OR ESTIMATED FEES FOR PRODUCTS OR SERVICES, ARE APPROPRIATE, ACCURATE OR WILL BE HONORED BY US IN ANY PARTICULAR JURISDICTION, AND ACCESSING OR PURCHASING THEM FROM JURISDICTIONS WHERE THEIR CONTENTS ARE ILLEGAL IS EXPRESSLY PROHIBITED.
(c) YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER WE NOR OUR AFFILIATES WILL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OF THE PLATFORM OR SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS, IN WHOLE OR IN PART, HELD TO BE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF US OR OUR AFFILIATES FOR ANY REASON AND UPON ANY CAUSE OF ACTION (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY AND OTHER ACTIONS IN CONTRACT OR TORT) ARISING OUT OF OR IN ANY WAY RELATED TO THE PLATFORM, SERVICES OR THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED UP TO TWO HUNDRED FIFTY DOLLARS ($250).
(d) THE LIMITATION OF LIABILITY HEREIN APPLIES TO ALL LIABILITIES IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM YOUR USE OR YOUR INABILITY TO USE THE PLATFORM OR SERVICES, OR ANY OTHER MATTER ARISING FROM OR RELATING TO THE PLATFORM OR THE SERVICES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITS OF LIABILITY, THE FOREGOING EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
11. NO WAIVERS
Our failure to insist upon or enforce strict performance of any provision of these Platform Terms shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any of these Platform Terms.
We may assign our rights and duties under these Platform Terms, including, without limitation, our rights in information collected through the Platform, to any third party at any time without notice to you, and such assignment rights shall include the ability to make an assignment in connection with any sale, merger, acquisition, divestiture or liquidation of all or part of our business or assets related to the Platform, all or substantially all of our business or assets, or as part of any reorganization or restructuring of our business.
13. GOVERNING LAW AND DISPUTE RESOLUTION
Your use of the Platform shall be governed in all respects by the laws of the State of Georgia, without regard to such state’s choice of law provisions, and not by the U.N. Convention on Contracts for the International Sale of Goods. Any cause of action or claim you may have with respect to the Platform must be commenced within one (1) year after the claim or cause of action arises.
Other than a controversy or claim relating to the validity of our intellectual property rights (as to which we may pursue any legal or equitable remedies available, you agree that any dispute that arises out of your use of the Platform or the Services shall be settled by confidential binding arbitration in Atlanta, Georgia in accordance with the arbitration rules of the American Arbitration Association. Each party shall bear its own attorney’s fees, expert witness fees, and costs in connection with such arbitration.
You and we submit to the jurisdiction of the courts in the State of Georgia with respect to matters arising under these Platform Terms, including, without limitation, to compel arbitration in accordance with these Platform Terms or to confirm any related arbitration award. You and we agree (i) to accept service of process in accordance with the rules designated by the applicable arbitrator, and (ii) to abide by any decision in any such arbitration and of any court having jurisdiction to enforce such decision.