Madgicx Terms of Service
Last updated: January 24th, 2023
These Terms of Service, including any referenced or attached exhibits, appendices and policies (collectively, the “Agreement”), form a binding agreement between Madgicx Ltd. and our affiliated companies (collectively, “Madgicx”, “we”, “our” or “us”) and the person or entity agreeing hereto (“Customer”, “you” or “your”). This Agreement governs all access to and use of the Madgicx website located at www.madgicx.com (“Website”), our affiliate, Sparkle’s website located at https://sparkle.madgicx.com, the Madgicx All-in-One Ads Platform that we make available via the Madgicx Website for purposes of management, monitoring and execution of marketing campaigns, and all other Madgicx services, technology, data, programs and materials (collectively, “Services”). This Agreement is effective as of your initial access to or use of the Services or upon execution of an Order hereunder, whichever is earlier (the “Effective Date”). Madgicx and you are each a “Party” and collectively, the “Parties.”
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE SERVICES, YOU REPRESENT THAT: (I) YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS AGREEMENT, AS WE MAY AMEND IT FROM TIME TO TIME, (II) UNDER THE LAWS OF THE JURISDICTION WHERE YOU RESIDE, YOU ARE OLD ENOUGH TO ENTER INTO A LEGALLY BINDING AGREEMENT AND (III) YOU HAVE THE AUTHORITY TO ENTER INTO AND BE BOUND BY THIS AGREEMENT PERSONALLY AND, IF APPLICABLE, ON BEHALF OF ANY PERSON OR ENTITY THAT YOU IDENTIFY TO US AS THE CUSTOMER IN THE APPLICABLE MADGICX ACCOUNT RECORD, BILLING STATEMENT, ONLINE SUBSCRIPTION PROCESS OR ORDER. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
- “Ad Account” means Customer’s account registered with an Ad Network.
- “Ad Network” means a third-party advertising platform (e.g., Meta/Facebook, Google) to which an Ad Account relates, and with respect to which the Services are rendered hereunder.
- “Ad Spend” means the total of all amounts included in all of Customer’s Ad Accounts, regardless of actual utilization or spend of such amounts.
- “Add-On” means any additional product or service enhancement made available for purchase in connection with the Services, including without limitation: Madgicx Cloud Tracking, One Click Reports, Consultation, Implementation.
- “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “Confidential Information” means all confidential information disclosed by one Party ("Disclosing Party") to the other Party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that a reasonable person would consider confidential under the circumstances of disclosure. Confidential Information includes all information concerning Disclosing Party's customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party, (ii) was known to Receiving Party before its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party, (iii) is received from a third party without breach of any obligation owed to Disclosing Party or (iv) was independently developed by Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement.
- "Customer Data" means all information that you submit or collect via the Services. Customer Data does not include Madgicx Content.
- “Data Protection Laws” means all applicable worldwide legislation relating to data protection and privacy which applies to the respective party in the role of processing Personal Data pursuant to this Agreement, and in each case as amended, repealed, consolidated or replaced from time to time.
- “Feedback” means any feedback, comments, ideas, proposals, suggestions, recommendations, enhancement requests, data, statistics or other information that you may provide regarding the Services.
- “Free Services” means the Services or other products or features that we make available to you on an unpaid trial or free basis.
- “Intellectual Property Rights” means all patents, copyrights, trade secrets, trademarks and service marks, trade names, trade dress, goodwill and marketing rights related thereto, works of authorship, inventions, discoveries, improvements, enhancements, methods, processes, formulas, designs, techniques, derivative works, know how, all other intellectual property or proprietary rights (registered or not) and equivalents or similar forms of protection existing worldwide, and all applications for and registrations in such rights.
- "Madgicx Content" means all information, data, text, messages, software, sound, video, images and tags that we provide or make available via, or that we incorporate into, the Services. Madgicx Content does not include Customer Data.
- “Master Account” means the main Madgicx account to which your Ad Accounts are linked. You may have multiple Master Accounts, which Madgicx may enable you to combine as necessary.
- “Order” means a Madgicx-approved order form or online subscription process which incorporates and is governed by this Agreement, and by which you agree to subscribe to or purchase Services.
- “Personal Data” means any information relating to an identified or identifiable individual where (i) such information is contained within Customer Data and (ii) is protected as personal data or personally identifiable information under applicable Data Protection Laws.
- “Platform” means Madgicx’s proprietary platform for management, planning, optimizing, monitoring and execution of advertising strategies and related activities, any updates, upgrades, modifications and enhancements, and any related documentation.
- “Refund” means a return of payment, minus a 10% institutional transaction charge.
- “Security Incident” means a breach of security of the Services leading to accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer Data in our possession or control.
- "Sensitive Information" means and includes: credit or debit card numbers, financial account numbers or wire instructions, government issued identification numbers (for example, Social Security or passport numbers), biometric information, personal health information or other information protected under any applicable health data protection laws, personal information of children protected under any child data protection laws, and any other special categories of information or combinations of information as set forth under applicable Data Protection Laws.
- “Subscription” means a recurring subscription entitling you to access and use the Services in accordance with this Agreement, which you purchase via an Order on a monthly, quarterly or annual basis.
- “Services” means the Platform that we make available on a Software-as-a-Service (SaaS) basis for purposes of online management, monitoring and execution of marketing campaigns, and any additional services that we provide or make available hereunder, including without limitation maintenance and support.
- “Term” means the initial term of your Subscription as specified in the applicable Order, and any subsequent renewal terms. For Free Services, the Term will be the period during which you have a Master Account to access the Free Services.
- "Third-Party Services" means software, applications and/or services provided and licensed by third parties, which may interoperate or be used in connection with the Services, and any products, services, websites or other resources (including content, products or services) that such third-party services may display, link to or make available.
2. Grant of Rights, Use of Services
- Registration. During the Term, we will provide you with a non-exclusive, non-transferable, revocable, right to access and use the Services solely as set forth in this Agreement and any applicable Order. You are not granted a license to any software. To access and use the Services, you must register with Madgicx for a Master Account by completing and submitting an Order at https://app.madgicx.com/auth/signup/. Registration may require you to submit certain contact information, including but not limited to name, address, contact number, industry, company, title, social media username and profile picture or image. You agree to maintain accurate, complete, and updated contact information in connection with your Master Account. You also may be required to link one or more Ad Accounts to your Master Account, although you may modify these Ad Account links later in your sole discretion. Once you have submitted a valid Order, we will send a confirmation e-mail to your designated address and we will register your Master Account. You may only begin use of the Services after receiving the confirmation e-mail.
- Your Responsibilities. You may provide access to and use of the Services to one or more designated end users (each, an “Additional User”). You are responsible for all activity that occurs under your Master Account, including by Additional Users. You are responsible for maintaining the security and confidentiality of all user login credentials (e.g., usernames and passwords). You will notify us promptly of any unauthorized access to or use of the Services. You are also responsible for obtaining and maintaining, at your own expense, any telecommunication, networking and security services, systems or equipment, as well as any hardware and other equipment, that are necessary for you to access and use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device and you will be responsible for such rates and fees.
- Additional Services. You may purchase additional Services by placing an Order (or activating Services from within your Master Account, if we make that option available). This Agreement will apply to all additional Services. The Term for any additional Services will be coterminous with your preexisting Services Term.
- Modifications. In an effort to improve your experience, we may modify the Services from time to time, including by adding or deleting features and functions in our sole discretion. We may provide some or all elements of the Services through third-party service providers.
- Free Trials. We may provide you with access to and use of Free Services, subject to submission of a valid Order and pursuant to this Agreement (except for payment obligations). To the extent that we offer a free-trial period upon registration, that free-trial is only applicable once to your Master Account. Your Master Account may be associated with such number of Ad Accounts as you indicate in the Order. We will make the Free Services available to you on a trial basis, free of charge until the earlier of (i) the end of the free trial period (if not terminated earlier) or (ii) the start date of your paid subscription. Unless you purchase a subscription to the applicable Services before the end of your free trial, all Customer Data in the Free Services may be permanently deleted at the end of the free trial, and we will not recover it. No compensation or refund will be provided with respect to any free trial.
- Customer Data. You grant to Madgicx, our Affiliates and their respective agents, suppliers and subcontractors, a non-exclusive, transferable, worldwide, perpetual, royalty-free license, with the right to sublicense through multiple tiers, to access and use, ingest, reproduce, duplicate, format, store, distribute, display and perform Customer Data and associated metadata, solely to provide the Services and as permitted by applicable law and this Agreement. We will not use Customer Data to contact any individual or company except as you may direct or otherwise permit.
3. Intellectual Property
- Subject to the rights expressly granted herein, we retain sole right, title and interest in and to the Services, any other content, products or services provided hereunder (other than Customer Data), any related documentation, our Confidential Information, and all Intellectual Property Rights in any of the foregoing.
- Subject to the rights expressly granted herein, you retain sole right, title and interest in and to your Customer Data and other Confidential Information, and all Intellectual Property Rights in any of the foregoing.
- We encourage you to comment on the Services and provide Feedback. You agree that we own all right, title and interest in and to the Feedback, including all associated Intellectual Property Rights. We may use and incorporate any Feedback into the Services or in any other manner, without payment or attribution to you.
4. Data Collection and Use, Security
- Protection of Customer Data. We will implement and maintain reasonable physical, technical and organizational safeguards to protect your Personal Data. We will store your Customer Data in a specific location or geographical region (e.g., North America or Europe) as part of your subscription, subject to the terms of this Agreement. We and our Affiliates may transfer Customer Data (including Personal Data) to the United States in connection with the Services. To the extent we process Personal Data from the European Economic Area, the United Kingdom and/or Switzerland or other Personal Data that is subject to the protection of Data Protection Laws, the applicable EU or UK Standard Contractual Clauses will apply as set out in a data protection addendum (DPA) between the Parties.
- No Sensitive Information. YOU ACKNOWLEDGE THAT THE SERVICES ARE NOT DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION AND YOU AGREE NOT TO USE THE SERVICES TO UPLOAD, COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICES TO UPLOAD, COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION.
- Usage Data. We may collect, use, share and disclose Usage Data for various purposes, including without limitation for calculation of Fees, coverage analysis, monitoring activities and improvement of the Services. “Usage Data” means data (excluding Customer Data) (i) that is generated from you or your Additional Users’ use of the Services, (ii) which does not comprise Personal Data, (iii) which is collected by us solely on an aggregated, anonymized basis, and (iv) which does not allow us or any third party to determine that such data relates to or was derived from you or any individual user. We own the Usage Data.
- Machine Learning. We may use Customer Data in an anonymized manner for machine learning, in order to support and improve the Services.
- Security Incidents. If a Party discovers that a Security Incident has occurred, that Party will notify the other Party promptly (and in any event within 72 hours) unless otherwise prohibited by law or otherwise instructed by a law enforcement or supervisory authority. In addition to providing such notice, the notifying Party will promptly take reasonable steps to investigate and mitigate the effects of the Security Incident.
5. Acceptable Uses
You agree not to access or use the Services to do any of the following:
- Post, upload, publish, submit or transmit any Customer Data or engage in any other activity that: (i) infringes, misappropriates or violates Intellectual Property Rights, proprietary rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, offensive, violent or threatening; (v) promotes or encourages discrimination, bigotry, racism, hatred, harassment, harm or violent, illegal or harmful activities or substances; (vi) contains any malicious computer code, file or program; or (vii) violates the terms and conditions of any applicable Ad Network or other third party;
- Use, display, mirror or frame the Services (in whole or part), any Madgicx name, mark, logo or other proprietary information, or the layout and design of any page or form, without Madgicx’s express prior written consent;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented to protect, secure or restrict the use of the Services or content;
- Attempt to access or search the Services or content, or to download content from the Services, through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than via the software and/or search agents provided by Madgicx or generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, spam, emails, junk mail, chain letters or other forms of solicitation;
- Use any metatags or other hidden text or metadata that incorporates a Madgicx name, mark, logo, domain or product name, without Madgicx’s express prior written consent;
- Sell, license, sublicense, rent, lease, loan, transfer, assign, network, distribute, or otherwise provide access or use of, or otherwise exploit, the Services to or for the benefit of any third party in any manner not expressly permitted by this Agreement, including without limitation to create or provide a similar or competitive service or product;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble, reverse engineer, exchange, convert or translate any software on the Website or used to provide the Services;
- Remove or tamper with any disclaimers, Intellectual Property Rights notices, proprietary rights notices or other legal notices in the Services or related documentation;
- Attempt to reproduce, copy, modify, adapt or create derivative works of the Services;
- Interfere with, or attempt to interfere with, the access of any user, host or network, such as by sending a virus, overloading, flooding, spamming or mail-bombing the Services;
- Scan, probe or test the Services, or breach the security of the Services;
- Disrupt the normal flow of communications on the Services, or access or use the Services in any way that could damage, disable, overburden or otherwise impair the Services or any Madgicx systems, networks, equipment or hardware;
- Impersonate or misrepresent your affiliation with any person or entity; or
- Otherwise violate any applicable law or regulation.
We are not obligated to monitor access to or use of the Services, nor to monitor, review, censor or edit any Customer Data or other content. However, we have the right to do so for the purposes of operating the Services, ensuring compliance with this Agreement, protecting the rights and safety of our personnel and third parties, and complying with legal requirements. We may disable or remove access to any data or content that, in our judgment, does not comply with this Agreement or is otherwise harmful, objectionable, or inaccurate; but we are not responsible for any failure or delay in removing such data or content. We may suspend or terminate access to and/or use of any Master Account and/or Services, without notice, for any suspected or actual violation of this Agreement. If we do suspend Services, we will make commercially reasonable efforts to limit the suspension to the affected portion of the Services, and each Party will make commercially reasonable efforts to promptly resolve the issues causing the suspension. We also reserve the right to investigate violations or other conduct that affects or threatens to affect the Services. In addition, you acknowledge that we may consult and cooperate as required with investigations by law enforcement, regulatory and governmental authorities.
6. Other Madgicx Policies
- Copyright Policy. We respect intellectual property rights and expect our customers and users to do the same. It is our policy to terminate, in appropriate circumstances, Master Account holders or users who repeatedly infringe, or are believed to be repeatedly infringing, the rights of copyright holders. Please review our Copyright Policy for more information.
8. Representations and Warranties
- By Each Party. Each Party represents and warrants that: (i) it possesses the full right, power and authority to enter into and fully perform this Agreement and grant the rights granted herein; (ii) it is not bound by any obligation that would prevent it from entering into or performing its obligations herein; (iii) the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action; and (iv) it will comply with all applicable laws, rules and regulations in its performance hereunder.
- By Customer. You further represent and warrant that: (i) you will use (or allow use of) the Services only as authorized hereunder; (ii) you will not use (or allow use of) the Services, alone or in combination with other materials, in a manner that would infringement, misappropriate or otherwise violate any third-party Intellectual Property Rights, proprietary rights, or rights of publicity or privacy; (iii) you have obtained all individual consents required for us to provide the Services in respect of any Personal Data that you provide; (iv) you have obtained all necessary access and use rights and permissions in connection with any Ad Accounts for which you order or purchase Services; and (v) you will strictly comply with all rules and instructions of any applicable Ad Networks, whether while using the Services or while operating directly with such Ad Networks. You acknowledge and agree that your strict compliance with such third-party Ad Network terms and conditions is an essential part of this Agreement and that you will be responsible for any damages caused to Madgicx or its other customers by a breach of those terms and conditions.
9. Term and Termination
- Term and Renewal. Your initial subscription term will be specified in your Order. Unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the subscription term, or one year. To prevent automatic renewal or to terminate your subscription at any time, you may terminate Services from the Madgicx Platform Settings Page; provided that, except as expressly stated in this Agreement or in an applicable Order, we will not provide any Refunds of prepaid or unused Fees, and you will promptly pay all unpaid Fees due through the end of the Term.
- Termination for Cause. Upon written notice to you, we may suspend, deny access to or terminate any Services, close any Ad Account, and/or terminate this Agreement for cause: (i) if you or an Additional User has materially breached this Agreement and such breach remains uncured 10 days after written notice of breach, (ii) if you have become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors and such proceeding has not been dismissed with fifteen (15) calendar days of its commencement, (iii) if you have breached the terms and conditions of a third-party Ad Network or if an Ad Network has requested in writing that we refrain from providing Services to you, or (iv) if we have determined that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our other customers or users.
- Free Services. We may restrict, suspend or terminate Free Services for any reason or without reason at any time, without notice. We may also terminate Free Services due to your inactivity.
- Effect of Termination. Upon termination or expiration of this Agreement: (i) all rights to access or use the Services will terminate and we will cease providing the Services; (ii) you will timely pay all applicable Fees accrued but unpaid; (iii) all liabilities accrued before the date of termination or expiration will survive; and (iv) upon request, each Receiving Party will return or destroy (and certify in writing to Disclosing Party such destruction of) all copies of Disclosing Party’s Confidential Information, except for one archival copy captured by system-backup media, provided that the backup media are maintained in confidence.
- Receiving Party will: (i) protect the confidentiality of Disclosing Party’s Confidential Information using the same degree of care that it uses to protect its own Confidential Information, but in no event less than reasonable care; (ii) not use Disclosing Party’s Confidential Information for any purpose outside the scope of this Agreement; (iii) not disclose Disclosing Party’s Confidential Information to any third party (except those third party service providers that we use to provide some or all elements of the Services); and (iv) limit access to Disclosing Party’s Confidential Information to those of Receiving Party’s and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Receiving Party containing protections at least as stringent than those contained herein.
- Receiving Party may disclose Disclosing Party’s Confidential Information pursuant to a legal requirement (e.g., subpoena) or to establish rights or obligations under this Agreement; provided, that (i) reasonable prior notice, unless legally prohibited, is provided to Disclosing Party to permit an opportunity to contest the disclosure and (ii) Receiving Party discloses only to the extent necessary to comply with the legal requirement or to establish its rights or obligations. Receiving Party will notify Disclosing Party upon discovery of any unauthorized use or disclosure of Disclosing Party’s Confidential Information and will cooperate to help prevent further unauthorized use or disclosure. Receiving Party acknowledges that Disclosing Party's Confidential Information is valuable and unique and that unauthorized use or disclosure may result in irreparable injury to Disclosing Party for which monetary damages are inadequate.
During the Term, the Parties may not issue press releases or other public communications regarding the Parties’ relationship created by this Agreement or the Services without express prior consent. You will not use our name, logo, trademarks, trade dress or otherwise identify or refer to Madgicx, Sparkle or The Agency except as specifically permitted under this Agreement or otherwise with our express prior consent. You grant us permission to use your logo and/or name on our Website(s), in our sales presentations, for marketing purposes and promotional materials, and to identify you as a customer of the Services in response to requests for information and responses to proposals. All other uses of your name, logo, trademarks, trade dress or other proprietary identifying symbols will be subject to your express prior consent.
- Indemnification. You agree to defend, indemnify and hold harmless Madgicx, its Affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns (each, a “Madgicx Indemnitee”) through final judgment or settlement, from and against any third-party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel) ("Claim") brought against a Madgicx Indemnitee arising out of or based upon: (i) unauthorized or unlawful access to or use of the Services and any information obtained therefrom; (ii) Customer Data; (iii) any breach of this Agreement; and/or (iv) any use of third-party Ad Network services, including without limitation, Ad Accounts.
- Process. The Madgicx Indemnitee will: (i) promptly provide notice to you of any Claim for which indemnity is claimed (provided, that, any delay in providing notice will not relieve you of your obligations hereunder, except to the extent that you are materially prejudiced by the delay); (ii) permit you to control the defense of any such Claim; and (iii) provide reasonable assistance at your reasonable cost. Subject to the foregoing, you may select legal counsel to represent the Madgicx Indemnitee (such counsel to be reasonably satisfactory to the Madgicx Indemnitee) and to otherwise control the defense. If you elect to control the defense, the Madgicx Indemnitee may fully participate in the defense at its own cost. If you, within a reasonable time after receipt of notice of Claim, fail to defend the Madgicx Indemnitee, the Madgicx Indemnitee may defend and compromise or settle the Claim at your cost. Notwithstanding the foregoing, you may not consent to entry of any judgment or enter into any settlement that imposes liability or obligations on the Madgicx Indemnitee or diminishes its rights, without obtaining the Madgicx Indemnitee’s express prior consent, such consent not to be unreasonably withheld or delayed.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE SERVICES, MADGICX CONTENT, OR DATA SYNCHED TO OR MADE AVAILABLE FROM THE SERVICES, FOR ANY PURPOSE. YOU ACKNOWLEDGE THAT THE SERVICES MAY BE SUBJECT TO MALFUNCTIONS AND DELAYS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SERVICES AND MADGICX CONTENT ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, WITH REGARD TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FURTHER, MADGICX DOES NOT WARRANT OR REPRESENT THAT THE SERVICES OR MADGICX CONTENT WILL MEET YOUR REQUIREMENTS, BE AVAILABLE ON AN UNINTERRUPTED, SECURE, ERROR-FREE, OR DEFECT-FREE BASIS, BE FREE OF ANY MALICIOUS CODE, OR BE ACCURATE, COMPLETE OR RELIABLE. NOR DOES MADGICX MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE OPERATION, FUNCTION OR RESULTS OF ANY ADVERTISING CAMPAIGN, OF ANY AD NETWORK OR OTHER THIR PARTY SERVICE PROVIDER, OR ANY THIRD-PARTY SERVICES, PRODUCTS, ACTS, OMISSIONS OR POLICIES.
14. Limitation of Liability
- Indirect Damages. TO THE EXTENT PERMITTED BY LAW, AND EXCEPT FOR A VIOLATION OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY; PROVIDED THAT, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE FREE SERVICES.
- Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘CONFIDENTIALITY’ OR ‘INDEMNIFICATION’ SECTIONS, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THEN THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE SERVICES IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. HOWEVER, THE FOREGOING LIMITATION WILL NOT APPLY IF YOU ONLY USE FREE SERVICES; AND IN SUCH CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS ($100).
- Third-Party Services. WE, OUR AFFILIATES AND LICENSORS DISCLAIM ALL LIABILITY WITH RESPECT TO ANY THIRD-PARTY SERVICES ACCESSED OR USED IN CONNECTION WITH THE SERVICES.
- Agreement to Liability Limitation. YOU ACKNOWLEDGE AND AGREE THAT, ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES HEREUNDER.
- Force Majeure. Neither Party will be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars, disease, or insurrections.
- Governing Law and Forum. This Agreement will be construed and enforced in accordance with the laws of the State of Israel, without regard to its conflict of law provisions. Each Party agrees that any action, suit or other proceeding involving Madgicx arising from or based upon this Agreement will be brought and maintained only in a court of competent jurisdiction located in the city of Tel Aviv-Jaffa. Each Party consents to the mandatory jurisdiction and venue of such courts and waives any right to object to jurisdiction and venue. The prevailing Party in any such dispute will be entitled to recovery of its reasonable attorneys' fees and costs. The Uniform Computer Information Transactions Act and United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Amendment. The terms of any other document, course of dealing, or course of trade will not modify this Agreement, except as expressly provided herein or as the Parties may agree in writing. Notwithstanding anything to the contrary, we may modify any part or all of the Agreement by posting a revised version at our Website(s). The revised version will become effective and binding the next business day after it is posted. We will provide you notice of this revision by email or in-Services notification. If you do not agree with a modification to the Agreement, you must notify us in writing within 30 days after we send notice of the modification. If you timely provide this notice, then your subscription will continue to be governed by the terms and conditions of the Agreement before modification, until your next renewal date, after which the current terms posted at the Website(s) will apply. However, if we can no longer reasonably provide the Services to you under the version of the terms before modification (for example, if the modifications are required by law or result from general changes to the Services), then the Agreement and/or affected Services will terminate upon our notice to you and we will promptly Refund any prepaid but unused Fees covering use of the impacted Services after termination.
- Waiver of Rights. Our failure or delay to enforce any right or provision of this Agreement will not be considered a waiver of that right or provision. Any waiver will be effective only if in writing and signed by a duly authorized representative of Madgicx. Except as expressly set forth in this Agreement, the exercise by either Party of any of its remedies hereunder will be without prejudice to its other available remedies.
- Entire Agreement. This Agreement (including each Order) constitutes the entire and exclusive understanding and agreement between us and you regarding the Services, and supersedes and replaces all other proposals and agreements, whether oral or written, between the Parties. We object to and reject any additional or different terms proposed by you.
- Severability. If any part of this Agreement or an Order is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
- Construction. The headings to Sections are for convenience or reference only and do not form a part of this Agreement and will not affect their interpretation. Neither Party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise. For purposes of the Agreement, the words and phrases “include”, “includes”, “including”, and “such as” are deemed to be followed by the words “without limitation”.
- Precedence. In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.
- Relationship of Parties. Nothing herein will be deemed to create, or be construed as creating, a joint venture, partnership, employment or agency relationship between the Parties.
- Survival. The Parties’ rights and obligations set forth in Sections 3 (with respect to Intellectual Property Rights ownership), 7(b) (Payment Disputes), 10 (Confidentiality), 12 (Indemnification), 13 (Disclaimer), 14 (Limitation of Liability) and 15 (Miscellaneous) will survive termination of this Agreement.
- Assignment. You may not assign, delegate or otherwise transfer this Agreement without our prior written consent, except to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, and provided that such successor is not a competitor of ours. Any attempt by you to otherwise assign, delegate or transfer the Agreement without our consent will be null and void. We may freely assign or transfer this Agreement, in whole or in part, without restriction. This agreement will bind and inure to the benefit of the Parties, their successors and permitted assigns.
- No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or will confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Notices. Any notices or other communications provided by us will be given: (i) via email; or (ii) by posting to the Services. The date of receipt will be deemed the date on which such notice is transmitted or posted.
16. Contact Us
If you have any questions about this Agreement or the Services, please contact us at:
Maskit St. 9