Magisto offers a web and mobile application that automatically edits and produces videos using proprietary technologies. Our website located at http://www.magisto.com (the “Site”). Magisto is owned and operated by Magisto, Ltd. (hereafter “Magisto”, “us”, “our”, “we”). These Terms of Service (“Terms”) govern your access and use of the Site, the Magisto mobile software application (the “Application”) and all services available through the Site and the Application (collectively, the "Services"). “You” or “Your” means an adult user of the Services, or as the parent or guardian of any minor whom you allow access to the Services, and for whom you will be held strictly responsible.
By downloading the Magisto mobile software, registering to use the Application or otherwise accessing the Application on a local device or remote device or server, you may be eligible to use any of the Services.
Magisto does not accept registration from users who are under 13 years of age, in compliance with the Children’s Online Privacy Protection Act of 1998. By visiting and contributing to content on Magisto, you attest that you are at least 13 years old.
If you are using the Services on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such other entity to these Terms. If you do not have such authority, then you may not use the Services on behalf of your employer and you must discontinue all use of the Services immediately. By logging in, you represent and warrant that you are authorized by your employer to access the Services.
To create an account, you must select a username and password. Your username is your Magisto identity. You may not select a username that is used by someone else, and your username cannot be indecent, or otherwise offensive, or be used in any way that violates the Terms and common practices. You may not provide false information during the registration process. You must provide truthful and accurate information while creating your account.
Maintaining account security is very important. You should not reveal your password to anyone. Magisto will not ask you to reveal your password. If you forget your password, you can request to have a new password sent to your registered e-mail address. Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. Your account is at risk if you let someone use it inappropriately and your account is subject to termination if you or anyone using your account violates the Terms. If your account is terminated, you may not join Magisto again without express permission.
You agree to immediately notify Magisto of any unauthorized use of your Magisto account or password. You are fully and solely responsible for the security of your computer system and all activity on your account, even if such activities were not committed by you. Magisto will not be liable for any losses or damage arising from unauthorized use of your account or password, and you agree to indemnify and hold Magisto harmless for any improper or illegal use of your account, including any mail sent and any charges and taxes incurred, unless you have notified us via e-mail to email@example.com that your account has been compromised, and have requested us to block access to it. This includes illegal or improper use by someone to whom you have given permission to use your account. We do not police for, and cannot guarantee that we will learn of or prevent, any inappropriate use of the Services.
If you sign up for a package that allows for commercial use of the Services (a “Commercial Use Package”), you will be allowed to use Content (defined below) created using such Commercial Use Package for limited commercial use as set forth under the section entitled “Intellectual Property & Content.” For the purposes of these Terms, users of Commercial Use Packages will be referred to as “Commercial Users,” and all other users, who may access the Services solely for their own personal use, will be referred to as “Personal Users.” Personal Users generally use the Services without charge but may pay for some aspects of the Services, such as Premium Content (defined below). Personal Users may upgrade to a Commercial Use Package by signing up for a Commercial Use Package.
Current fees for Commercial Use Packages are as set forth on the Site. All fees paid are nonrefundable. We accept various forms of payment, as set forth on the Site from time to time. By signing up for a Commercial Use Package and providing your billing information, you are authorizing us to charge your designated payment method on a recurring basis. You may update any of your billing information (including a change to your desired billing payment method) through your account settings on the Site.
Your subscription for a Commercial Use Package may start with a free trial. The free trial period of your subscription lasts for the period specified during sign-up. If at the end of the free trial period, you wish to continue use of the Commercial Use Package, we will ask you to provide your billing information and charge your designated payment method on a recurring basis. Free trials are for new and certain former users only. Magisto reserves the right, in its absolute discretion, to determine your free trial eligibility.
Unless you cancel your subscription in the “Billing” section of your account settings or notify us of your decision to cancel, your subscription will automatically renew at the then-current fee. You will be charged on the date you signed up for a Commercial Use Package (or at the end of your free trial period) for the period ending on the last day of the then-current month, and subsequently, you will be charged in advance on or around the last day of each month for the immediately following monthly subscription term.
Magisto may, from time to time, modify, amend, or supplement its pricing and billing procedures, and such changes shall be effective immediately upon posting an update of these Terms or posting such changes elsewhere on the Site. If you do not accept the new changes, you should terminate your subscription immediately. If there is a dispute regarding your payment of fees, or the Service, Magisto shall have the right to terminate your account without prior notice. All fees are exclusive of any sales and use taxes, which shall be your responsibility and liability.
You agree that Magisto may for any reason, in its sole discretion and without notice, terminate your account, and remove from the Services any Content (as defined below) associated with your account. Grounds for such termination may include (i) past due payment, regardless of the amount, (ii) extended periods of inactivity, (iii) violation of the letter or spirit of these Terms, (iv) fraudulent, harassing or abusive behavior, (v) behavior that is harmful to other users, third parties, or the business interests of Magisto or (vi) if, under appropriate circumstances, the user is determined by Magisto to be a repeat infringer of intellectual property rights. If Magisto terminates your account for any of the foregoing reasons, you shall not be entitled to any refund of fees paid with respect to such account. You agree to pay any outstanding balance in full within seven (7) days of termination of your account.
If Magisto believes, in its sole discretion, that a violation of these Terms or any illegal or inappropriate behavior has occurred, we may take any other corrective action we deem appropriate. We reserve the right to investigate suspected violations of these Terms or illegal and inappropriate behavior on the Services. We will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone believed to have violated these Terms or to have engaged in illegal behavior on the Services.
You may request termination of your Magisto account at any time and for any reason by sending an email to firstname.lastname@example.org. Any suspension, termination, or cancellation shall not affect your obligations to Magisto under these Terms (including but not limited to ownership, intellectual property, indemnification, and limitation of liability), which by their sense and context are intended to survive such suspension, termination, or cancellation. Premium Fees and fees paid in advance for Commercial Use Packages are not refundable, and Magisto shall not refund any such fees if you request to terminate your account. YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NON- REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
You have the right to cancel your account at any time. To cancel your account, go to Settings>Change Personal Details and click “Delete Account”.
Magisto and its licensors own the Services, including all worldwide intellectual property rights in the Services, and the trademarks, service marks, and logos contained therein.
If you are a Personal User, Magisto hereby grants you a limited, revocable, personal, worldwide, royalty-free, non-exclusive, nonsublicensable and non- assignable license to use the Services solely for your personal use. Except as expressly permitted herein, Personal Users may not copy, further develop, reproduce, republish, modify, alter, download, post, broadcast, transmit or otherwise use the Services.
If you are a Commercial User, Magisto also hereby grants you a limited, revocable, personal, worldwide, royalty-free, non-exclusive, nonsublicensable and non-assignable license to use the Content created using your Commercial Use Package for any legitimate business purpose, including, without limitation, selling such Content online and offline (whether through an e-commerce website or directly to a customer in electronic or tangible form, such as on a DVD), posting, distributing or otherwise monetizing such Content online, and incorporating such Content into other works, such as television advertisements. If you cease to be a Commercial User, the license granted hereunder shall continue only with regard to Content you created using your Commercial Use Package.
YYou will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Site, Services or any Content, except as Magisto may expressly permit. You are not required to provide Magisto with any feedback or suggestions regarding the Services or any Content. However, should you provide Magisto with comments or suggestions for the modification, correction, improvement or enhancement of the Services then, subject to the terms and conditions of this Agreement, you hereby grant Magisto a non-exclusive, irrevocable, worldwide, royalty-free license, including the right to sublicense, to use and disclose such comments and suggestions in any manner Magisto chooses and to display, perform, copy, have copied, make, have made, use, sell, offer to sell, and otherwise dispose of Magisto’s and its sublicensees’ products and content embodying such comments or suggestions in any manner and via any media Magisto chooses, but without reference to the source of such comments or suggestions.
Certain types of content may be made available through the Services, including edited and summarized videos. In addition, the Site may contain blogs and forums to which Magisto may allow you, in its sole discretion, to post Content. “Content” as used in these Terms means, collectively, all content on or made available on the Services (whether to the general public or to individual persons) including but not limited to any such edited and summarized videos, music clips or any conversations or pictures available on the Services, including any statements or other material made available on any blog or forum available through the Services. Magisto reserves the right to remove and permanently delete any Content, including any edited or summarized videos of any user, without notice, including without limitation any Content that is in the sole discretion of Magisto obscene, abusive, indecent, illegal or may otherwise subject us to public disparagement or scorn. As such, you should take care to preserve the originals of your video. You should have no expectation that any edited or summarized videos will always be available through the Services. Do not rely upon the Site and/or the Application as a storage space for Content.
You hereby grant Magisto a perpetual, irrevocable, non-terminable, transferrable, worldwide, royalty- free, fully paid-up and non-exclusive license to use, copy, distribute, publicly perform, display, modify and create derivative works of any Content or part of any Content you submit and grant sublicenses of the foregoing rights. You hereby represent, warrant and covenant that you have all right, title and interest in and to the Content you make available on the Services and that any Content you submit does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified herein.
You acknowledge that Magisto has the right to pre-screen any Content submitted by you, but no obligation to do so. At Magisto’s sole discretion, any Content submitted by you may be included in the Service in whole or in part in a modified form. In addition, Magisto and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Services that violates these Terms or is otherwise objectionable including, but not limited to, being unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or violating any party’s intellectual property.
Magisto may allow you to forward, post, embed or email any Content (or links to such Content). In addition, Magisto may provide you with the ability to download or modify any Content. You expressly agree that you shall observe all applicable laws, regulations and rules of other third party websites and services in forwarding, embedding or posting such Content, or links to such Content. You shall not forward, post or otherwise distribute any Content or links to Content that violates these Terms. You may not embed any Content in any third party site if such third party site contains any content that would violate these Terms. You accept full liability for all Content that you modify, forward or post, including in respect of any third party intellectual property rights or moral rights in such Content. Magisto cannot accept any liability in respect of your modifications of any Content. You shall fully indemnify Magisto for any breach of the terms set forth in this paragraph.
Magisto may allow Personal Users to incorporate certain pre-selected audio works into video summaries. Copyright in such pre-selected audio works is owned by third parties and is licensed by Magisto for use in the Services. Such pre-selected audio works may only be used for your own personal purposes. You may not make any commercial or other use of such works, and except as expressly set forth herein you may not copy, lease, publicly perform, broadcast or distribute such works without the prior written consent of the copyright holder. You may not link directly to any such audio works. You may choose to incorporate other audio works in Content other than the pre-selected audio works made available by Magisto. In such event you represent and warrant that the incorporation of such audio works does not violate any third party intellectual property or moral rights, and you agree to fully indemnify Magisto for any losses resulting from your breach of such warranty.
Content made available by Magisto comes from a variety of sources. You understand Magisto is not responsible for the accuracy, usefulness, safety or intellectual property rights of or relating to any third party Content made available through the Services. Further, you understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you hereby agree to waive, and do waive, any legal or equitable rights or remedies you have or may have against Magisto with respect thereto, and agree to hold Magisto, its owners/operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding your use of the Services or your exposure to any Content.
The Application may provide functionality for the automatic creation of videos or other content. If this option is chosen (including by default), the Application will automatically access content on your device in order to create a video. By using this option, you expressly allow Magisto to automatically access such content on your device for these purposes. The Application allows such functionality to be operational only when your device is connected to a wireless network or only when your device is charging. You should review these options and select the alternative appropriate for your circumstances and needs. Magisto shall not have any liability for the operation of the automatic creation functionality according to the options that have been selected (including by default).
You are solely responsible for Submissions you post or transmit to the Services. “Submissions” is defined as anything a user transmits to the Services or to another in the course of using the Services, including without limitation any raw video or audio material. You shall remain at all times solely responsible for the full functionality, accuracy, reliability, integrity, quality or validity of all Submissions. You represent and warrant that you are the owner of all Submissions and have all legal right and authority to grant the Magisto the license set forth herein. You further represent and warrant that with respect to any Submission, all necessary licenses, permissions, releases and consents (including, without limitation, trademark licenses, audio rights, or privacy/publicity releases for Submissions depicting people, products, businesses, or other content) have been obtained by you. In addition, you represent and warrant that no Submission infringes the intellectual property rights or moral rights of any third party or violates any applicable law. Magisto reserves the right, at its sole discretion, to remove any Submissions or delete an account, without prior permission of its users, that may violate these Terms at any time. Magisto does not pre-screen Submissions, but reserves the right to delete Submissions that violate these Terms.
Magisto does not claim ownership of your Submissions. However, by sending any Submissions you automatically grant Magisto a worldwide, non-exclusive, royalty-free, sublicensable and transferable perpetual license of all worldwide rights to use, edit, modify, include, incorporate, adapt, record, perform, display and reproduce Submissions including, without limitation, all trademarks associated therewith, in any manner whatsoever, in or out of context, in all languages, in all media now known or hereafter created, including without limitation, for the purpose of improving and/or commercially promoting Magisto and/or the Services. Magisto may retain any raw audio or video material that you submit, and make internal use of such material including for testing purposes. You may request that Magisto delete and make no further use of such material by sending an email to email@example.com.
Without limiting the foregoing, you agree that you will not use the Services in any manner or transmit any Submission that:
Posts, stores, transmits, offers, or solicits anything that contains the following, or that you know contains links to the following or to locations that in turn contain links to the following: (a) Material that we determine to be offensive (including material promoting or glorifying hate, violence, bigotry, or any entity (past or present) principally dedicated to such causes or items associated with such an entity); (b) Material that is racially or ethnically insensitive, material that is defamatory, harassing or threatening; (c) Pornography (including any obscene material, and anything depicting children in sexually suggestive situations whether or not depicting actual children) or may be harmful to a minor; (d) Any virus, worm, Trojan horse, or other harmful or disruptive component; (e) Anything that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or regulation or is otherwise inappropriate; or
Restricts or inhibits use of the Site and/or the Application;
Uses any account or password without prior permission;
Obtains or solicits another person’s password or other personal information under false pretenses; Impersonates another user or otherwise misrepresents yourself in any manner, whether to another user, to us, or otherwise;
Violates the legal rights of others, including defaming, abuse, stalking or threatening users;
Infringes (or results in the infringement of) Magisto’s or any third party’s intellectual property rights, moral rights, or other rights;
Is (or you reasonably believe to be illegal, fraudulent, or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or you reasonably believe to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material;
Does not comply with all applicable laws, rules, or regulations, including obtaining all necessary permits, licenses, registrations, etc. In the case of any proposed or actual transaction, “applicable” refers to both your own location and to location(s) of all other parties to the transaction; or would cause Magisto to be in violation of any law, ordinance, rule, regulation or treaty, or to infringe any right of any third party;
Publishes falsehoods or misrepresentations that may damage Magisto or any third party;
Manipulates identifiers, forges headers or other data in order to disguise the origin of content transmitted through our sites or to manipulate your presence on the Services;
Disrupts, interferes or harms the Services, servers or networks; or
Imposes an unreasonably or disproportionately large load on our infrastructure.
In addition, you may not use the Services to post, store, or transmit advertising, promotional material, or solicitations of goods or services, except in areas of the Services designated for the purpose, such as those designated for Commercial Users.
Magisto in its sole discretion may choose to provide users with “Premium Content”. Premium Content may provide for additional functionality, such as but not limited to allowing users to download videos, to edit a video or to remove any branding that Magisto may incorporate in a video.
The purchase of Premium Content shall be subject to the payment of fees to Magisto, which Magisto may determine from time to time in its sole discretion (“Premium Fees”). All Premium Fees paid are nonrefundable. We accept various forms of payment, as set forth on the Site from time to time. Magisto may allow you to pay Premium Fees through a third party service (such as Paypal), in which event the payment of such Premium Fees shall be subject to the third party's applicable terms and conditions.
If you elect to pay for any Premium Content on a monthly recurring basis, you are authorizing us to charge your designated payment method on a recurring basis. You may update any of your billing information (including a change to your desired billing payment method) through your account settings on the Site. Unless you cancel your subscription in the “Billing” section of your account settings or notify us of your decision to cancel, your subscription will automatically renew at the then-current fee. You will be charged on the date you sign up on a recurring basis for the period ending on the last day of the then-current month, and subsequently, you will be charged on or around the last day of each month for the immediately following monthly subscription term.
Magisto may, from time to time, modify, amend, or supplement its pricing and billing procedures, and such changes shall be effective immediately upon posting an update of these Terms or posting such changes elsewhere on the Site. If you do not accept the new changes, you should terminate your subscription immediately. If there is a dispute regarding your payment of fees, or the Service, Magisto shall have the right to terminate your account without prior notice. All Premium Fees are exclusive of any sales and use taxes, which shall be your responsibility and liability.
The software and technology underlying the Services is the property of Magisto, and you may not connect to or use the Site and/or the Application in any way that is not expressly permitted by these Terms. Specifically, you may not do or attempt to do any of the following:
Attempt to decipher, decompile, disassemble, or reverse-engineer any of the software used to provide the Services (including without limitation, for the purpose of obtaining unauthorized access to our Site and/or the Application) without our prior written authorization, including framing or mirroring any part of the Site and/or the Application;
Circumvent, disable, or otherwise interfere with security-related features of the Services, the Site, the Application or features that prevent or restrict use or copying of any Content, including without limitation any edited or summarized videos;
Use the Site, Content or Services in connection with any commercial endeavors in any manner, except for the purposes specifically set forth in these Terms;
Sell, resell or otherwise monetize any Content to any third party, except as specifically set forth in these Terms;
Use any robot, spider, site search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Site and/or the Application;
“Deep link” to the Services or any Content, unless such link was provided to you for that purpose by the Site or the Application;
Harvest, collect or mine information about other users of the Services;
Create a database by systematically downloading and storing all or any of the Content on the Site or the Application;
Violate the Terms or any other rule or agreement applicable to you or Magisto through the Services’ inclusion in, reference to, or relationship with any third party or third-party site or service, or your use of any such third-party site or service;
Remove, obscure, make illegible or alter any proprietary notices or labels or other indications of Magisto’s rights in the Services;
Use or access another user’s account or password without permission; or
Use the Services or content thereon in any manner not permitted by these Terms.
Magisto does not endorse any Submission or any opinion, recommendation, or advice expressed therein, and Magisto expressly disclaims any and all liability in connection with Submissions. Magisto does not permit copyright infringement or infringement of intellectual property rights on its Site or the Application. We will remove all Content and Submissions if properly notified of these infringements, and may do so at our sole discretion, without prior notice to users at any time.
Under the Digital Millennium Copyright Act of 1998 (the “DMCA”), it is our policy to respond to
copyright owners who believe material appearing on the Services infringes their rights under US
copyright law. If you believe that something appearing through the Services infringes your copyright,
you may submit a notification pursuant to the DMCA by providing our Copyright Agent (information
below) with the following information in writing (please see 17 U.S.C 512(c)(3) for further detail):
If you believe that such a notice was wrongly filed against you, the DMCA allows you to send a counter-
notice to our Copyright Agent which shall include the following information:
Be aware that there can be substantial penalties for false claims. Send notices and counter-notices to our designated Copyright Agent. Our designated Copyright Agent to receive notifications of claimed infringement only is Magisto Copyright Agent c/o Stubbs, Alderton and Markiles, LLP, 15260 Ventura Blvd., 20th Fl., Sherman Oaks, CA 91403, email: firstname.lastname@example.org, fax: 415-938-8099. If you need to contact us for any other reason, please contact us at email@example.com or write us at Customer Service, 3 Hamazmera St., POB 2038, Ness-Ziona 74120, Israel
Portions of the Site and the Services (including, without limitation, advertisements) may involve linking to or using web sites belonging to third parties. We have no control over third-party sites, and all use of third-party sites is at your own risk. Magisto is not responsible for content or services available by means of such sites. Magisto does not endorse any products or services offered by third parties and we urge our users to exercise caution in using third-party sites.
Each coupon is identified by a coupon code provided by Magisto and has different requirements and rewards. Please check your coupon — all requirements stated on the coupon must be met to receive the applicable reward. Coupons may not be reproduced or modified, and Magisto shall have no responsibility to honor modified coupons. Coupon redemption amounts are as specified on the coupon, but coupons have no cash value. Limit of one coupon per individual. Coupons are for single use only. Codes are redeemable only at www.magisto.com or otherwise as directed by Magisto. Each code is valid for a limited time only and expires on the date specified in the offer. Codes are not for resale and may not be assigned to any other party. Codes cannot be replaced if lost, stolen, or deleted, and Magisto has no responsibility for lost, stolen or deleted coupons or codes. A coupon cannot be retroactively applied to orders placed with Magisto without use of the coupon. Magisto reserves the right to discontinue or terminate a coupon at any time. The consumer is responsible for all sales taxes charged by Magisto on the applicable transaction. Coupons are void where prohibited, taxed or otherwise restricted by law.
Your use of any aspect of the Site and/or the Application is at your own risk. Magisto makes no representations or warranties whatsoever in respect of the Services or Content. Neither Magisto nor any of its affiliates will be liable for any direct, incidental, consequential, indirect, punitive, exemplary, special or other damages, whether under any contract, tort (including negligence), strict liability, or other theory, and regardless of whether it has been advised of the possibility of such claim or damage, arising in connection with the Services, Submissions or Content. Magisto cannot accept any liability whatsoever in respect of any Content which is modified by you or any other third party.
You shall not, directly or indirectly, export the Services to any country to which such export is prohibited by law. You agree to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Services or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. The Application may not be downloaded or otherwise exported or re-exported (i) any country subject to U.S. Trade Sanctions covering the Application, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are citizens or lawfully admitted permanent residents of the United States and not currently domiciled in countries subject to such sanctions; or (ii) to anyone on the U.S. Department of the Treasury’s list of specially designated nationals and blocked persons or the U.S. Department of Commerce’s table of denial orders.
WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY STATED IN THESE TERMS, YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAGISTO EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. MAGISTO MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SERVICES.
MAGISTO DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR THE APPLICATION AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE SITE OR THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE SITE OR THE APPLICATION WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE SITE OR THE APPLICATION WILL BE CORRECTED; OR (e) THE SITE OR THE APPLICATION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR THE APPLICATION IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEVICE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Without limiting the foregoing, Magisto shall have no liability for:
Any adverse effect to your computer or other software as a result of your use of the Services, or as a result of any Content available through the Services;
Your use of (or inability to use) the Site, the Application or any Site component thereof, including Submissions, Content and any transactions that involve the Services;
Any material available (or intended to be available) on or by means of the Services or information or advice received by means of the Services;
Any error or omission of Magisto, or any act or omission of any third party;
Any error, delay, interruption, operational problem, unavailability, or failure in the Site, the Application or any component thereof, or any directly or indirectly related equipment, system, programming, or network (including the internet);
Any breach of security involving the Services or your account;
Any viruses or other code or component that may affect your computer system, mobile device or other property as a result of your use of the Services.
You agree to indemnify, defend, and hold harmless Magisto and the respective employees, directors, officers, subcontractors and agents of each, against any and all claims, damages, or costs or expenses (including reasonable attorneys’ fees) that arise directly or indirectly from: (a) breach of these Terms by you or your employees or agents or anyone using your computer, device, or password; (b) any claim, loss or damage experienced from your or your employees' or agents' use or attempted use of (or inability to use) the Services, including any transactions that you or your employees or agents conduct or attempt; (c) your or your employees' or agents' violation of any law, ordinance, rule, regulation or treaty; (d) your or your employees' or agents' infringement of any right of any third party, including without limitation the infringement by any Submissions of any third party intellectual property right or moral right; (e) your or your employees' or agents' violation of any applicable law, regulation, rule or third party intellectual property right or moral right as a result of your or your employees' or agents' forwarding, posting or use of any Content; (f) any Content that you or your employees or agents downloaded from the Services or modified; and (g) any other matter for which you or your employees or agents are responsible hereunder or under law. You agree that your or your employees' or agents' use of the Services shall be in compliance with all applicable laws, regulations and guidelines.
In no event shall Magisto be liable to you or any third party for any damages, including but not limited to general, incidental, consequential, indirect, direct, special or punitive damages, arising out of or relating to the Services or Content. In any case, Magisto’s entire liability under any provision of this agreement shall not exceed amounts paid by you to Magisto for the use of the Services and Content hereunder. As such, if you have not made any payments to Magisto for the use of the Services, Magisto shall have no liability to you whatsoever, with the exception of death or personal injury caused by negligence of Magisto to the extent applicable law prohibits the limitation of damages in such cases.
Software provided by Magisto may contain or be provided together with open source software. Each item of open source software is listed at www.magisto.com/credits, and is subject to its own applicable license terms as listed therein, or which can be found and/or in the software documentation or the applicable help, notices, about or source files. Copyrights to the open source software are held by the respective copyright holders as indicated in the respective copyright notice. If any applicable open source license requires that Magisto make available any software in source code format, you can contact Magisto at firstname.lastname@example.org to obtain a copy of such source code. To the extent required by any open source license, the terms of such licenses will apply in lieu of the terms of these Terms and the restrictions in these Terms will not apply. Notwithstanding anything to the contrary herein, Magisto makes no warranties and accepts no liability in respect of any open source software.
These Terms shall be governed by the laws of the State of California exclusive of its choice of law rules. Your conduct may also be subject to other local, state, and national laws. Subject to the binding arbitration provision below, any action to be brought in connection with these Terms or the Services (other than an action relating to the DMCA) shall be brought exclusively in the state and federal courts located in San Francisco, CA, and you irrevocably consent to their jurisdiction. In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys’ fees. Any cause of action against Magisto must be brought within one (1) year of the date such cause of action arose. In the event that any provision of these Terms is held to be unenforceable, such provision shall be replaced with an enforceable provision which most closely achieves the effect of the original provision, and the remaining terms of these Terms shall remain in full force and effect. Nothing in this Agreement creates any agency, employment, joint venture, or partnership relationship between you and Magisto or enables you to act on behalf of Magisto. Except as may be expressly stated in these Terms, these Terms constitute the entire agreement between Magisto and you pertaining to the subject matter hereof, and any and all other agreements existing between us relating thereto are hereby canceled. Nothing contained in these terms shall be construed to limit the actions or remedies available to Magisto with respect to any prohibited activity or conduct. Non-enforcement of any term of these Terms does not constitute consent or waiver, and Magisto reserves the right to enforce such term at our sole discretion. No waiver of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. These Terms are for the benefit of Magisto (and respective assignees), and each shall have the right to assert and enforce its provisions against you directly on its own behalf. We may assign our rights under these terms to any third party.
You and Magisto agree that, except as provided below, all disputes, controversies and claims related to these Terms (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth herein and the JAMS Rules, the terms herein will control and prevail.
Except as otherwise set forth herein, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and Magisto will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (a) you and Magisto may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
The arbitration will be conducted in San Francisco, California, unless the parties agree to video, phone and/or internet connection appearances.
You and Magisto agree that any arbitration shall be limited to the Claim between Magisto and you individually. YOU AND MAGISTO AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
You and Magisto agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Magisto’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If Magisto initiates arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
You and Magisto agree that if any of the arbitration provisions are found illegal or unenforceable (except any portion under the “Exceptions to Arbitration” section), only those provisions that are found illegal or unenforceable shall be severed and the remainder of the provision shall be given full force and effect. If the provisions under the “Exceptions to Arbitration” section are found to be illegal or unenforceable then neither you nor Magisto will elect to arbitrate any Claim falling within those provisions found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of San Francisco, California, and you and Magisto agree to submit to the personal jurisdiction of that court.