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Terms of Service

These Terms of Service (“Terms”) govern your access to and use of the services and websites provided by Device Magic (the “Services”), and any information, text, graphics, or other data, uploaded, downloaded or using the Services (collectively referred to as “Data”). Your access to and use of the Services is conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms.

Basic Terms

You may use the Services only if you can form a binding contract with Device Magic and are not a person barred from receiving services under the laws of the State of Delaware, the United States, or other applicable jurisdiction. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.

The Services that Device Magic provides are always evolving and the form and nature of the Services that Device Magic provides may change from time to time without prior notice to you. In addition, Device Magic may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally and may not be able to provide you with prior notice. We also retain the right to create limits on use and storage at our sole discretion at any time without prior notice to you.

Privacy

Any information that you provide to Device Magic as part of your account is subject to our Privacy Policy, which governs our collection and use of your information. You understand that through your use of the Services you consent to the collection and use (as set forth in the Privacy Policy) of this information, including the transfer of this information to the United States and/or other countries for storage, processing and use by Device Magic. As part of providing you the Services, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and your Device Magic account, which you may not be able to opt-out from receiving.

Passwords

You are responsible for safeguarding the password that you use to access the Services and for any activities or actions under your password. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. Device Magic cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

Data on the Services

All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. We may not monitor or control the Content posted via the Services and, we cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk.

Your Rights

You retain your rights to any Content you submit, post or display on or through the Services.

We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.

For the purposes of troubleshooting and debugging, certain administrators employed by Device Magic may inspect data as it in transit through our systems. This inspection does not confer any rights to reproduce or disseminate information as a result of this process.

You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of your Content by other users and our third party partners. You understand that your Content may be rebroadcasted by our partners and if you do not have the right to submit Content for such use, it may subject you to liability. Device Magic will not be responsible or liable for any use of your Content by Device Magic in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.

Device Magic Rights

All right, title, and interest in and to the Services (excluding Data provided by users) are and will remain the exclusive property of Device Magic and its licensors. The Services are protected by copyright, trademark, and other laws of both the the State of Delaware, the United States, and foreign countries. Nothing in the Terms gives you a right to use the Device Magic name or any of the Device Magic trademarks, logos, domain names, and other distinctive brand features. Any feedback, comments, or suggestions you may provide regarding Device Magic, or the Services is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.

Device Magic may reference you as a user of the Services and use your name and logo, as applicable, in listings of customers of the Services appearing on the Device Magic web site and for other marketing and promotional purposes relating to the Services.

Restrictions on Data and Use of the Services

We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Data on the Services and to terminate users or reclaim usernames. Please review the Device Magic Rules (which are part of these Terms) to better understand what is prohibited on the Service. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Device Magic, its users and the public.

You may not do any of the following while accessing or using the Services: (i) access, tamper with, or use non-public areas of the Services, Device Magic’s computer systems, or the technical delivery systems of Device Magic’s providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Device Magic (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with Device Magic (NOTE: crawling the Services is permissible if done in accordance with the provisions of the robots.txt file, however, scraping the Services without the prior consent of Device Magic is expressly prohibited); (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; or (v) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Data in such a manner as to interfere with or create an undue burden on the Services.

The Services are Available “AS-IS”

Unless superseded by a signed Service Agreement with Device Magic your access to and use of the Services or any Content is at your own risk. You understand and agree that the Services is provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, Device Magic AND ITS PARTNERS DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. We make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security or reliability of the Services or any content thereon. Device Magic will not be responsible or liable for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services, or any Content. You also agree that Device Magic has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from Device Magic or through the Services, will create any warranty not expressly made herein.

Links

The Services may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Device Magic of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Device Magic AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT Device Magic HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

Exclusions

Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.

Waiver and Severability

The failure of Device Magic to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable, the remaining provisions of these Terms will remain in full force and effect.

Controlling Law and Jurisdiction

These Terms and any action related thereto will be governed by the laws of the State of Delaware, the United States, without regard to or application of its conflict of law provisions or your state or country of residence. All claims, legal proceedings or litigation arising in connection with the Services will be brought solely in the State of Delaware, the United States, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.

Entire Agreement

These Terms, the Device Magic Rules and our Privacy Policy are the entire and exclusive agreement between Device Magic and you regarding the Services (excluding any services for which you have a separate agreement with Device Magic that is explicitly in addition or in place of these Terms), and these Terms supersede and replace any prior agreements between Device Magic and you regarding the Services. Other than members of the group of companies of which Device Magic is the parent, no other person or company will be third party beneficiaries to the Terms.

We may revise these Terms from time to time, the most current version will always be at www.Device Magic.com/termsOfService. If the revision, in our sole discretion, is material we will notify you via an e-mail to the email associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.

These Services are operated and provided by Device Magic Inc., 2700 Fairmount, Dallas, TX, United States. If you have any questions about these Terms, please contact us.