Terms & Conditions | Device Magic

Terms & Conditions

Usage terms for the Device Magic product and website

Device Magic Terms & Conditions

Usage terms for the Device Magic product and website

Last Updated: June 2, 2020

These Terms and Conditions and all other legal documents incorporated by reference (collectively, the “Terms”) are a legal contract between “you” and Device Magic Inc (“Company”, “we” or “us”) and govern your access to and use of the services, websites and software applications provided by Company (collectively, the “Services”), and any information, text, graphics, software, tools, documentation, proprietary content, or other data, available through  the Services (collectively referred to as “Materials”). Collectively, all of the Materials and Services are called the Service.” 

Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SERVICE. By accessing or using the Service you agree to be bound by these Terms. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, OR IF AT ANY TIME, THE TERMS ARE NO LONGER ACCEPTABLE TO YOU, PLEASE CEASE USE OF THE SERVICE IMMEDIATELY.

  1. General Use

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

If you are not legally able to enter into contracts, you may not use the Service at any time or in any manner or submit any information to the Company or the Service.

The Company provides content through the Service that is copyrighted and/or trademarked work of the Company or the Company’s third-party licensors and suppliers or other users of the Service (collectively, the “Materials”).  Materials may include logos, graphics, video, images, software and other content.

Subject to the terms and conditions of these Terms, and your compliance with these Terms, the Company hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Materials and to use the Service solely for your personal use.  Except for the foregoing license, you have no other rights in the Service or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Service or Materials in any manner.

If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials and/or stop using the Service.

  1. Modifications

(a) These Terms. The Company can change, update, add or remove provisions of these Terms, at any time by posting the updated Terms on the website and by providing a notice on the website. We will ask for your express consent to the updated Terms where we are legally required to do so, and our notice to you will explain the reason for variation and how you can accept or reject the change. If you do not agree with any of the updated Terms, you must stop using the Service.

(b) Service. The Service that Company provides is always evolving and the form and nature of the Service that Company provides may change from time to time without prior notice to you. In addition, Company may stop (permanently or temporarily) providing the Service (or any features within the Service) 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. If you object to any changes to the Service, your sole recourse will be to cease using it. Continued use of the Service following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the Service as modified.

(c) Paid subscriptions. Please note that if you are under paid-subscription services with us, in the event we change the price for the services which you have previously agreed to pay or if we substantially change the services you are paying for, we will also notify you of such changes as contemplated in Section 2(a) above.  Any changes will become effective after your then-current subscription expires or terminates.  If you do not agree with such changes and you communicate this to us in accordance with the notification, we will not automatically renew your subscription even if you previously agreed to automatic renewal for payment.

(d) Additional Terms. In addition, certain features of the Service may be subject to additional terms of use (“Additional Terms”), which shall be provided to you at the moment you choose to use such features. By using such features, or any part thereof, you agree to be bound by the Additional Terms applicable to such features. In the event that any of the Additional Terms governing such area conflict with these Terms, the Additional Terms will govern.

(e)  Separate Signed Contract. If You have entered into a separate executed agreement for services with the Company (a “Contract”), such Contract shall supersede these Terms. In the event of any conflict between these Terms and the Contract, the Contract will prevail. In cases where the Contract does not address specific provisions included in these Terms, these Terms will apply, supplementing the Contract.

  1. Online Subscriptions and Cancellations

If applicable, you agree to pay all fees or charges to your account based on the Company’s fees, charges, and billing terms in effect as shown on the Pricing Page.  If you do not pay on time or if the Company cannot charge your payment method for any reason, the Company reserves the right to either suspend or terminate your access to the Service and terminate these Terms.  You are expressly agreeing that the Company is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of the Service and the fees will be billed to your payment method designated on your registration with the Service, and thereafter at regular intervals for the remainder of the term of these Terms.  If you cancel your account at any time, you will not receive any refund.  If you have a balance due on any account, you agree that the Company may charge such unpaid fees to your method of payment or otherwise bill you for such unpaid fees.

Should you purchase a subscription to our Service ("Subscription") on our website, that Subscription will be subject to auto-renewal for additional periods of the same term as your original Subscription term, unless you or Company requests termination at least thirty (30) days prior to the end of the then-current term. We will bill you via the payment method on your billing profile at the time of renewal. Neither termination nor downgrades to license count and/or plan type can be processed if an account has a past-due balance. After receiving the payment in full, changes to the account will be reflected upon the next account renewal. Requests to terminate your Subscription should be submitted from within the Company’s web application. Subject to Section 2(c) above, Company reserves the right to change the price of any Subscription without prior notice.

CANCELLATION TERMS:  YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME, AND SUCH CANCELLATION SHALL BECOME EFFECTIVE UPON EXPIRATION OF YOUR THEN-CURRENT SUBSCRIPTION TERM. YOU AGREE AND UNDERSTAND THAT YOU WILL BE CHARGED SUBSCRIPTION FEES UNTIL THE EXPIRATION OF YOUR THEN-CURRENT SUBSCRIPTION TERM AND SUBSCRIPTION FEES WILL NOT BE REFUNDED, IN WHOLE OR IN PART, SUBJECT TO APPLICABLE LAW.  YOU WILL NOT BE ELIGIBLE FOR A PRO-RATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEES PAID FOR ANY UNUSED DAYS OF THE THEN-CURRENT SUBSCRIPTION TERM. IF YOU CANCEL YOUR SUBSCRIPTION, YOU WILL ENJOY YOUR SUBSCRIPTION BENEFITS UNTIL THE EXPIRATION OF THE THEN-CURRENT SUBSCRIPTION TERM FOR WHICH YOU HAVE PAID, AND YOUR SUBSCRIPTION BENEFITS WILL EXPIRE AT THE END OF THE THEN-CURRENT SUBSCRIPTION TERM. IF YOU HAVE ANY PROBLEMS OR CONCERN WITH YOUR CANCELLATION PLEASE CONTACT US AT ACCOUNTS@DEVICEMAGIC.COM FOR ASSISTANCE.

  1. Privacy

Any personal information that you provide to Company is subject to our Privacy Policy, which governs our collection and use of your personal information and the choices you can make about the way this information is collected and used. The Privacy Policy is hereby incorporated by reference and made part of these Terms. You understand that through your use of the Service 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 Company.

  1. Electronic Communications

As part of providing you the Service, we may need to provide you with certain communications, such as service announcements and administrative messages. These communications are part of the Service and you may not be able to opt-out from receiving. By using the Service, you consent to receiving electronic communications from the Company.  These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Service.  These electronic communications are part of your relationship with the Company.  You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.

  1. Passwords

You need not register with the Company to simply visit and view our websites. You can simply view the website and not use the Service.  However, in order to access certain password-restricted areas of the website and to use certain Services and Materials offered on and through the website, you must register with the Company for an account and receive a password.

You are responsible for safeguarding the password that you use to access the Service 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. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. All the information that you provide when registering for an account, and otherwise through the Service, must be accurate, complete and up to date.

  1. Your Content on the Service

Certain areas of the Service may permit You to submit information, data, text, software, messages, feedback, or other materials (your “Content").  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 Service and, we do not take responsibility for such Content. Any use or reliance on any Content or Materials posted via the Service or obtained by you through the Service is at your own risk.

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

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 Company 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 Service, 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. Company will not be responsible or liable for any use of your Content by Company 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.

By submitting any Content, You are representing that:

  • You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of Your Content;
  • Your Content do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
  • Any information contained in Your Content is not known by You to be false, inaccurate, or misleading;
  • Your Content does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
  • Your Content is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another's privacy;
  • Your Content does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files; and
  • Your Content does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.

By submitting a Content, You grant to Us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:

  • Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display Your Content (or any modification thereto), in whole or in part, in any format or medium now known or later developed for the purposes of providing the Service;
  • We may, but are not obligated to, pre-screen Content or monitor any area of this Service through which Content may be submitted. We are not required to host, display, or distribute any Content on or through this Service and may remove at any time or refuse any Content for any reason. We are not responsible for any loss, theft, or damage of any kind to any Content.
  1. Intellectual Property Rights

All right, title, and interest in and to the Service (excluding Content provided by users) are and will remain the exclusive property of Company and its licensors. The Service are protected by copyright, trademark, and other laws of both the State of Delaware, the United States, and foreign countries. Nothing in the Terms gives you a right to use the Company name or any of the Company trademarks, logos, domain names, and other distinctive brand features. Any feedback, comments, or suggestions you may provide regarding Company, or the Service 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.

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

  1. Restrictions on Materials and Use of the Service

We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Materials on the Service and to terminate users or reclaim usernames. 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 Company, its users and the public.

You may not do any of the following while accessing or using the Service: (i) access, tamper with, or use non-public areas of the Service, Company‘s computer systems, or the technical delivery systems of Company‘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 Service by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Company (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with Company (NOTE: crawling the Service is permissible if done in accordance with the provisions of the robots.txt file, however, scraping the Service without the prior consent of Company 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 Service to send altered, deceptive or false source-identifying information; (v) use the provided trial or evaluation period to submit production data; or (vi) 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 Service, or by scripting the creation of Materials in such a manner as to interfere with or create an undue burden on the Service.

This list of prohibitions provides examples and is not complete or exclusive.  The Company reserves the right terminate access to and/or use of the Service with or without cause and with or without notice, for any reason or no reason, or for any action that the Company determines is inappropriate or disruptive to the Service or to any other user of the Service.  The Company may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct.  When legally required or at the Company’s discretion, the Company will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Service or on the Internet.

You agree to indemnify and hold the Company and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) the Company or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of the Service violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.

  1. Export Controls

You acknowledge that the Service are subject to the export control laws and regulations of the United States, and you represent and warrant that your access to, and use of, the Service, shall be in full compliance with such laws and regulations. You may not access, use or otherwise export or reexport the Service except as authorized by United States law and the laws of the jurisdiction(s) in which the Service were obtained or accessed. In particular, but without limitation, the Service may not be accessed from, exported or reexported (i) into any U.S. embargoed jurisdiction (as of the date of these Terms and Conditions, such jurisdictions include but are not limited to Iran, Sudan, Cuba, North Korea, and Syria); or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List or any other restricted party lists. By using the Service, you represent and warrant that you are not located in any such jurisdiction or on any such list, and that you are not acting for a person or entity that is located in any such jurisdiction or on any such list. You also agree that you will not use the Service for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. Company may, in its sole discretion, suspend or terminate your access to the Service and/or any associated account in the actual or suspected breach of the ‘Export Controls’ section of these Terms. No refund or other credit will be granted or otherwise provided to you in the event of such suspension or termination.

  1. The Service is Available “AS-IS”

Unless superseded by a signed Contract with Company your access to and use of the Service or any Content is at your own risk. You understand and agree that the Service is provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, COMPANY 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 Service or any content thereon. Company 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 Service, or any Content. You also agree that Company 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 Service. We make no warranty that the Service 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 Company or through the Service, will create any warranty not expressly made herein.

  1. Links

The Service 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 Company 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.

  1. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY 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 COMPANY 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.

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.

  1. Waiver and Severability

The failure of Company 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.

  1. Controlling Law and Jurisdiction

These Terms and any action related thereto will be governed by the laws of the State of Delaware, 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 Service 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.

  1. Entire Agreement

These Terms, our Privacy Policy, any separate Contract we may have executed directly with you, any Additional Terms that we may make available from time to time through our internet properties, and any other document incorporated by reference constitute the entire and exclusive agreement between Company and you regarding the Service, and these Terms supersede and replace any prior agreements between Company and you regarding the Service. Other than members of the group of companies of which Company is the parent, no other person or company will be third party beneficiaries to the Terms.

The Company prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action.  However, certain violations of these Terms, as determined by the Company, may result in immediate termination of your access to the Service without prior notice to you.  The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.

  1. Contact Us.

The Service is operated and provided by Device Magic Inc., 227 Fayetteville Street, Suite 802, Raleigh, NC, 27601, USA. If you have any questions about these Terms, please contact us.