Last Modified 20 June 2018
Magnithink Co., Ltd.
Terms of Use
THIS TERMS OF USE IS A LEGALLY BINDING AGREEMENT between you and Magnithink Co., Ltd. (“Magnithink”, “we” or “us”). By using the magnithink.com website (“Site”) or any other Magnithink Services (as defined below) to which these terms are applied, you agree to all the terms and conditions of this Terms of Use (“Terms of Use”). This Terms of Use governs our Site and our apps, games, services, features and content (collectively, the “Services”), whether accessible or downloadable from the Site or third-party app stores or other sources. Whenever you use the Services, you agree to be bound by all of the terms and conditions of these Terms of Service.
IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT USE THE SERVICESS. USE OF THE SERVICESS IS VOID WHERE PROHIBITED.
1. Your Acceptance of the Terms of Use
Please carefully read these Terms of Use, which affect your legal rights and obligations. By registering for an Account or otherwise using the Services, you represent that (1) you are age 13 or older, (2) you understand and agree to these Terms of Use, and (3) if you are between the ages of 13 and 18, your legal guardian has reviewed and agrees to these Terms of Use. By accepting these Terms of Use, you are also consenting to the collection, use and disclosure of your information as described in our Privacy Policy which is incorporated herein by reference in its entirety.
2. Changes to the Terms of Use and the Services
Magnithink reserves the right to change or modify these Terms of Use at any time in its sole discretion. Any such change or modification will be effective immediately upon posting on the Services, and your continued use of the Services after any changes or modifications to these Terms of Use are posted will constitute your acceptance of and agreement to such changes or modifications. If you object to any change or modification, your sole recourse shall be to cease using the Services. As an exception, We will give you 60-days’ notice by email or through the Services if We change Section 17 on our Agreement to Arbitrate and Class Action Waiver.
YOU AGREE THAT MAGNITHINK SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY CHANGE OR MODIFICATION TO THESE TERMS OF USE.
Except as may be expressly specified otherwise by Magnithink with respect to paid portions of the Services, Magnithink reserves the right to add, change, suspend or discontinue the Services, or any aspect or feature of the Services, without notice or liability.
3. Relationship to Other Agreements
Your use of the Services or portions of the Services may also be subject to the terms and conditions of one or more related third-party agreements (“Third Party Agreements”), such as agreements governing your download of or access to applications that are part of the Services by means of a third-party website or source. In the case of any conflict between any Third-Party Agreement and these Terms of Use with respect to Magnithink or any aspect of the Services, these Terms of Use will control.
4. Registration, User Data and Accounts
You may register for a user account that enables you to post content to a blog, message board, chat room or other forum (an “Account”). You also may be required to otherwise provide information about yourself in order to use the Services. You agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Services and (ii) maintain and promptly update such data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, incomplete or not current, Magnithink has the right to suspend or terminate your Account and refuse any and all current or future use of the Services by you.
Each user of the Services is allowed a maximum of one Account per Device. A “Device” must embed Apple’s operating system or the Android operating system. You may not sell, trade, or otherwise transfer or assign your Account to another party, except as expressly provided in Section E of these Terms of Use. You are responsible for maintaining the confidentiality of your password and Account and agree not to provide your login information to any other party. You are fully responsible for all activities that occur under your password or Account with or without your knowledge. You agree to immediately notify Magnithink of any unauthorized use of your password or Account or any other breach of security.
5. Rights to Use the Services
Subject to your compliance with these Terms of Use, Magnithink grants you a limited, revocable, non-exclusive, non-transferable, nonsublicensable license to use and display, solely for your personal, non-commercial use, solely on a single computer to access the Site and solely on a Device to access Magnithink ’s applications, the following: (a) such portions of the Services as are freely accessible from the Magnithink Site or that are, with Magnithink ’s authorization, made freely accessible from third party websites or sources, and (b) provided that you have paid the applicable fees and satisfied applicable conditions, such other portions of the Services accessible on a for-payment basis. You may transfer your Account or portions of the Services from one Device to another only as expressly authorized and enabled by Magnithink through the Services. You will be allowed to transfer the Services to a new Device so long as you are the owner of both the old and new Devices and the Account being transferred. After you transfer the Services to a new Device, it will be automatically removed from the old Device. You agree not to (and not to attempt to) (i) use the Services for any use or purpose other than as expressly permitted by these Terms of Use or (ii) copy, adapt, modify, prepare derivative works based upon, derive the source code from, reverse engineer, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or any portion of the Services, except as expressly permitted in these Terms of Use. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Magnithink or its licensors, except for the licenses and rights expressly granted in these Terms of Use. Without limiting the generality of Section B above, Magnithink reserves the right to modify the license and restrictions set forth in this section and elsewhere in these Terms of Use in accordance with the terms and conditions of these Terms of Use, including without limitation by charging fees for such license. Magnithink reserves the right to cease providing service at any time, for any reason.
6. Service Materials, Ownership, Trademarks and Feedback
Except for Your Content (as defined below) and except as otherwise expressly set forth in these Terms of Use, as between you and Magnithink, Magnithink and its licensors own and will retain ownership of all right, title and interest in and to the Services and the Services Materials. “Service Materials” means all information and materials that are part of the Services, including without limitation the following: photographs; graphics; layout; text; images; audio; video; designs; advertising copy; data; logos; domain names; trademarks, service marks, trade names and other source identifiers; any and all copyrightable material, including software; the “look and feel” of the Services or portions thereof; the compilation, assembly and arrangement of the materials of the Services or portions thereof; and User Content. You acknowledge and agree that you shall not acquire any ownership rights whatsoever by downloading Service Materials or by obtaining any Free Virtual Currency or purchasing any Paid Virtual Currency or Virtual Goods (each as defined below).
You acknowledge and agree that the Services Materials are protected by, and their use, copying and dissemination may be restricted by, applicable intellectual property and other laws in both the United States and other jurisdictions. All rights not expressly granted by these Terms of Use are reserved by Magnithink and its licensors, and no license is granted hereunder by estoppels, implication or otherwise. You agree not to encumber, license, modify, publish, copy, sell, transfer, transmit or in any way exploit, any portion of the Services or Service Materials other than Your Content (as defined below), nor will you attempt to do so, except as expressly permitted in writing by Magnithink and, as applicable, the owner of such Service Materials (from whom you are solely responsible for obtaining permission).
The term Magnithink, the Magnithink logo and other Magnithink Co., Ltd. logos and product and service names are trademarks and service marks of, and are owned by, Magnithink . Except as expressly set forth herein, you may not use or display such trademarks in any manner without Magnithink ’s prior written permission. All third-party trademarks and service marks appearing on the Services are the property of their respective owners. All rights are reserved therein. Use of any Magnithink trademarks or service marks as “metatags” on other websites is prohibited.
If you provide Magnithink with comments, suggestions or feedback about, or in connection with, the Services (collectively, “Feedback”), you agree that such Feedback shall be the exclusive property of Magnithink , and you hereby assign all rights, title and interest in and to such Feedback to Magnithink . You agree that unless otherwise prohibited by law, Magnithink may use, sell, disclose and otherwise exploit the Feedback in any way and for any purpose, without restriction and without compensation to you.
7. User Content
The Services may invite or enable you and other users to create, submit, post, display, transmit, perform, publish or distribute communications, content and materials (including without limitation text, writings, photographs, graphics, images, comments, personally identifiable information and so forth), including by making the foregoing available to Magnithink and other users of the Services, whether via e-mail or through online forums, message boards, messaging services, blogs or other functionality of the Services or portions thereof (collectively, “User Content”). Magnithink has no obligation to accept, display, review, maintain or otherwise exploit any User Content.
You understand that all User Content available in connection with the Services is the sole responsibility of the person from whom such User Content originated. Magnithink has no obligation to pre-screen, review, examine, evaluate or otherwise monitor any User Content for accuracy, completeness, timeliness, validity, legality, decency, quality, integrity, usefulness or any other quality. Magnithink makes no, and hereby disclaims any and all, warranties or other guarantees with respect to User Content. You understand that your use of the Services is at your own risk and that by using the Services, you may be exposed to User Content that is offensive, indecent, objectionable or that does not otherwise meet your needs. You agree that you must evaluate, and bear all risks associated with, the use of any User Content available in connection with the Services. Under no circumstances will Magnithink be liable in any way for any User Content made available via the Services, including, but not limited to, any errors or omissions in any such User Content, or any loss or damage of any kind incurred as a result of the use of such User Content.
Notwithstanding the foregoing, Magnithink reserves the right in its sole discretion to pre-screen, review, monitor, refuse, remove from the Services, censor, edit, alter, delete, disable access to or otherwise make unavailable any User Content (including without limitation Your Content) without notice for any reason, including without limitation the violation of these Terms of Use, or for no reason, at any time. You may bring User Content that you believe violates these Terms of Use, or other inappropriate user behavior, to Magnithink ’s attention by emailing support@magnithink.com.
8. Your Content
User Content that you make available in connection with the Services is referred to herein as “Your Content.” You agree that Your Content is not confidential. You further agree that Your Content will not be returned to you.
You represent and warrant that Your Content is wholly original to you and that you exclusively own the rights to Your Content, including the right to grant all of the rights and licenses in these Terms of Use without Magnithink incurring any third-party obligations or liability arising out of its exercise of such rights and licenses. Magnithink does not claim any ownership rights in Your Content and, except as expressly set forth herein, nothing in these Terms of Use will be deemed to restrict any rights that you may have to use and exploit Your Content.
You hereby grant to Magnithink a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, (with the right to sublicense), to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit Your Content via the Services or otherwise. You also grant to Magnithink the right to sublicense and authorize others to exercise any of the rights granted to Magnithink under these Terms of Use. You further perpetually and irrevocably grant Magnithink the unconditional right to use and exploit your name, persona and likeness included in any User Content and in connection with any User Content, without any obligation to you. Except as prohibited by law, you waive any rights of attribution and/or any so-called moral rights you may have in Your Content, regardless whether Your Content is altered or changed in a manner not agreeable to you.
Magnithink has no obligation to monitor or enforce your intellectual property rights in or to Your Content.
9. Restrictions and Rules of Use
You may only register an account and/or use the Services if use of the Services is legal from where you access it.
As a condition of your use of the Services, and without limiting your other obligations under these Terms of Use, you agree to comply with the restrictions and rules of use set forth in this Section as well as any additional restrictions or rules (such as application-specific rules) set forth in the Services. The Services is for your personal and noncommercial use only. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, reverse engineer, transfer or sell for any commercial purposes any portion of the Services, use of the Services or access to the Services, except for limited reverse engineering activities that may be, and only to the extent, permitted by applicable law.
You agree to not use the Services to transmit, make available or otherwise promote or support:
(a) any User Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, sexual, libelous, invasive of another’s privacy, hateful, discriminatory or disparaging or otherwise objectionable or inappropriate;
(b) any User Content that promotes illegal activity, such as drug use;
(c) any User Content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
(d) any User Content that infringes any patent, trademark, trade secret, copyright or other intellectual property, proprietary or other rights of any party;
(e) any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
(f) any spyware, passive collection mechanism or any other code or material that acts as a passive or active information collection or transmission mechanism;
(g) cheats, hacks, cracks, malicious programs, viruses or any other computer code, files or programs that have the effect of or are intended to modify, impair, disrupt, destroy, interfere with or limit the functionality of the Services or any portion thereof, take control of any computer software, hardware or telecommunications equipment or interrupt any user’s uninterrupted use and enjoyment of the Services; or
(h) unreleased Service content (such as in-game items or equipment), areas that have been unlocked by hacking into client data files, or data not available through normal operation or game play on any portion of the Services.
You further agree not to:
(i) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
(ii) interfere with, disrupt or circumvent any security feature of the Services or any feature that restricts or enforces limitations on use of or access to the Services;
(iii) use the Services to intentionally or unintentionally violate any applicable local, state, national or international law;
(iv) use the Services to harm minors in any way;
(v) use the Services to reveal any personal information about another individual, including any information that may be used to track, contact or impersonate that individual;
(vi) defraud or mislead Magnithink or other users or otherwise engage in any suspicious activity;
(vii) use the Services to engage in any commercial activity, including without limitation any attempt to raise money for any party or any purpose or advertise, promote or attempt to trade or sell a website, pyramid scheme, multi-tiered marketing scheme or any other product or service of any kind;
(viii) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
(ix) create any Account by automated means or false pretenses, create more than one Account per Device, or use any other user’s Account for any purpose, including to circumvent a suspension or ban;
(x) cheat or use, develop or distribute automation software programs (“bots”), “macro” software programs or other “cheat utility” software program or applications which are designed to modify the Magnithink experience to the detriment of fair play; or
(xi) sell or transfer the Services (or any portion thereof), your Account or access to your Account in exchange for legal tender or other actual currency, or for other goods, services or items of monetary value.
You also agree not to access the Services: (x) by any means other than through the interface that is provided by Magnithink for use in accessing the Services; (y) through any automated means (including the use of any script, web crawler, robot, spider, or scraper); or (z) by forging or manipulating identifiers in order to disguise the origin of any access to the Services. Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable User Content, and you agree to comply with all applicable laws regarding the transmission of technical data exported to or from the United States or the country in which you reside.
In addition, you agree not to use the Services or any portion of the Services that enables communications, (for example, email, online forums, message boards, messaging services or blogs), to: (1) excessively communicate the same phrase, similar phrases, or gibberish; (2) create undue discontent or disturbances among other users, such as by picking fights, making off-topic posts in forums or insulting other users of the Services; (3) post or transmit non-constructive comments; (4) abuse any functionality enabling reporting to Magnithink by sending false alarms or nonsensical messages; (5) bump forum threads; (6) number threads or post other non-contributory posts, such as IBTL (i.e., in before the lock), TLDR (i.e., “too long; didn’t read”) or “First!” posts; (6) post off-topic comments; (7) commit other actions that Magnithink considers, in its sole discretion, to be “flaming,” “trolling” or “spamming”; (8) create new threads about existing topics or separate threads about an existing topic for further discussion in more than one forum (e.g., cross-postings); or (9) links to threads from other forums unless previously approved by a moderator.
These rules of use are not meant to be exhaustive, and Magnithink reserves the right to determine what conduct it considers to be in violation of the rules of use or otherwise outside the spirit of the Servicess and to take action – up to and including termination of your Account and exclusion from further participation in the Servicess.
10. Free and Paid Virtual Currency and Virtual Goods
The Services may include virtual currency, such as cash, coins, points or similar that may be provided to you at no charge by Magnithink, earned through game-play or otherwise obtained at no cost to you through game-play on the Services, the (“Free Virtual Currency”). In addition, you may purchase, for legal tender or actual currency and subject to applicable law, virtual currency, the (“Paid Virtual Currency”). The Services may also include virtual digital items, such as assets, commodities, abilities or other goods that may be earned or obtained through the Services or otherwise purchased by you for legal tender or actual currency, or for Free or Paid Virtual Currency, subject to applicable law (such virtual items, “Virtual Goods”). Magnithink reserves the right, at any time and at its sole discretion, to manage, regulate, control, modify or eliminate Free and Paid Virtual Currency and/or Virtual Goods, and Magnithink shall have no liability to you or any third party for the exercise of such rights. You shall have a limited, personal, revocable, non-transferable, non-sublicensable license to use solely within the Services in accordance with these Terms of Use any Virtual Goods and Free and Paid Virtual Currency that you have earned, purchased or otherwise obtained in a manner authorized by Magnithink. You have no other right, title or interest in or to any such Virtual Goods or Virtual Currency appearing or originating in the Services.
Magnithink prioritizes the use of Free and Paid Virtual Currency in game-play such that any Paid Virtual Currency is first consumed, and secondly, any Free Virtual Currency is then consumed.
Magnithink prohibits transfer of Free and Paid Virtual Currency out of your account (e.g., to another user account) except in such cases in which Magnithink provides a feature to do so. Additionally, Magnithink prohibits transfers of accounts between users. You agree not to sublicense, trade, sell or attempt to sell Virtual Goods for "real" money or anything of value outside of a game. Any such transfer or attempted transfer is prohibited and void, and We may terminate your Account because of it.
You acknowledge that the Virtual Goods can be used solely for entertainment purposes and that any money you pay is solely for entertainment purposes. The Virtual Goods have no cash value and shall not be deemed a thing of value for legal purposes.
If a user has not used Virtual Currency, whether Free or Paid, kept in that user’s balance after two (2) months since last use, Magnithink reserves the right to void the Virtual Currency and set the balance to zero (0).
You hereby acknowledge and agree that the sale, gift, leasing, sharing, license, or other transfer of Virtual Currency, whether Free or Paid, and Virtual Goods is strictly prohibited except where expressly authorized in the Services. Outside the Services, you shall not sell, redeem or otherwise transfer any Free and Paid Virtual Currency or Virtual Goods to any other user of the Services or any other party.
You agree that all purchases by you of Paid Virtual Currency and Virtual Goods are final and, except as determined by Magnithink in its sole and absolute discretion, non-refundable. You acknowledge and agree that upon termination of these Terms of Use, your Account or the Services for any reason, including upon Magnithink’s discontinuation of the Services or applicable portion thereof for any reason, all Virtual Currency, whether Free or Paid, and Virtual Goods will be forfeited by you, and Magnithink will have no liability to you in connection therewith.
11. Posting On Other Websites and Linking to the Services
Subject to these Terms of Use, Magnithink agrees to grant you a limited, revocable, non-exclusive, non-transferable license to post your personal Account profile information, such as your achievements in applications that make up part of the Services, and such other Service Materials as Magnithink may authorize in writing, for non-commercial purposes only and only on your personal website or on a third party website that permits posting of such content at the direction of users, provided that such third party website (i) is not a commercial competitor of Magnithink, (ii) does not criticize, or take other actions that could reasonably expected to result in harm to, Magnithink, (iii) does not obtain any rights to such posted content other than a non-exclusive license to post it at your direction, (iv) does not charge for access to such content and does not associate products, services or advertising with such content, and (v) together with all websites to which it links, complies with all applicable laws, does not in any way threaten or violate the intellectual property or other rights of any kind of any third party and does not host, post, publish, distribute, disseminate or facilitate any content that, if User Content posted on the Services, would violate these Terms of Use (each such third party website, an “Authorized Website”). Magnithink agrees to grant you a non-exclusive, limited license, revocable at Magnithink’s discretion, for you to link to Magnithink’s home page from any Authorized Website. You may not display the Services or any portion thereof in frames or “in-line links” without express written permission from Magnithink.
12. Termination
These Terms of Use will remain effective until terminated by either party. You may terminate these Terms of Use at any time and for any reason by (a) uninstalling the Magnithink app (or, if you have not installed any Magnithink apps, by sending an email to support@magnithink.com notifying Magnithink of your termination), (b) deleting or otherwise destroying all Service-related materials and (c) ceasing use of the Services.
Magnithink may terminate these Terms of Use, your Account and your access to the Services (or, at Magnithink’s sole option, applicable portions of the Services) at any time and for any reason. Magnithink may, at its option and in its sole discretion, precede any such termination by issuing you a warning or other notice, such as upon your violation of these Terms of Use. However, you acknowledge that Magnithink is not required to provide you with any such notice or warning prior to any such termination under this Section. In addition, Magnithink may notify authorities or take any actions it deems appropriate (including without limitation suspending your Account and your access to the Services), without notice to you if Magnithink suspects or determines that you may have (i) failed to comply with any provision of these Terms of Use or any policies or rules established by Magnithink; or (ii) engaged in actions relating to or in the course of using the Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, Magnithink, any third parties or the Services itself.
You may, as the result of termination, lose your Account and all information and data associated therewith, including without limitation your usernames, avatars, in-application characters and achievements, all Free and Paid Virtual Currency and Virtual Goods, as applicable. You acknowledge and agree that upon any termination permitted under these Terms of Use for any reason, whether by you or Magnithink, you will not be entitled to and Magnithink will not be liable to you or any third party for any refund, reimbursement or other liability. If Magnithink terminates your Account, you may not participate in the Services or any other Magnithink service without Magnithink’s express written permission. To request permission for post-termination participation in a Magnithink service, email support@magnithink.com. Magnithink reserves the right to refuse to keep Accounts for, and provide Magnithink services to, any individual. You shall not allow individuals whose Accounts have been terminated by Magnithink to use your Account.
13. Disputes With Others
You are solely responsible for your interaction with other users of the Services and other parties that you come in contact with through the Services. Magnithink hereby disclaims any and all liability to you or any third party relating to your use of the Services. You will cooperate fully with Magnithink to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, granting Magnithink access to any password-protected portions of your Account. Magnithink reserves the right, but has no obligation, to monitor and manage disputes between you and other users of the Services.
14. Disclaimers of Warranties and Damages, Limitations of Liability
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTY OF ANY KIND.
THE MAGNITHINK PARTIES (AS DEFINED BELOW) HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, THE SERVICES MATERIALS AND ANY AND ALL USER CONTENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE MAGNITHINK PARTIES MAKE NO WARRANTY THAT (a) THE SERVICES WILL MEET YOUR REQUIREMENTS OR THE SERVICES MATERIALS OR USER CONTENT WILL BE VIEWABLE TO YOU; (b) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT ERRORS WILL BE CORRECTED; OR (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR ANY SERVICE MATERIALS OR USER CONTENT WILL BE ACCURATE OR RELIABLE.
THE “MAGNITHINK PARTIES” ARE COMPRISED OF MAGNITHINK AND ITS AFFILIATES AND SUBSIDIARIES, AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS.
UNDER NO CIRCUMSTANCES SHALL THE MAGNITHINK PARTIES BE RESPONSIBLE OR LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OF USE OR THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY S MAGNITHINK PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES IS TO STOP USING THE SERVICES.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain types of damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that Magnithink or any other Magnithink Party may not, as a matter of applicable law, disclaim any warranty or limit its liability as set forth herein, the scope and duration of such warranty and the extent of Magnithink and such Magnithink Party’s liability shall be the minimum permitted under such applicable law.
15. Links to External Locations and Third-Party Websites
The Services may contain links to third-party websites or resources. You acknowledge and agree that Magnithink is 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 Magnithink 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. Magnithink may remove any links at any time for any reason or for no reason.
16. Indemnification
You agree to indemnify, defend and hold the Magnithink Parties harmless from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) made by a third party due to or arising from (1) information in your Account and any information you (or anyone accessing the Services using your password) submit, post or transmit through the Services, (2) your (or anyone accessing the Services using your password) use of the Services, (3) your (or anyone accessing the Services using your password) violation of these Terms of Use or any applicable Additional Terms of Use or Third Party Agreements, and (4) your (or anyone accessing the Services using your password) violation of any rights of any other person or entity.
17. APPLICABLE LAW
These Terms and our relationship will be governed by People's Republic of China law, except for its conflicts of laws principles.
18. VENUE FOR LEGAL DISPUTES NOT SUBJECT TO ARBITRATION
All judicial proceedings must be brought in provincial court in Nanjing, Jiangsu Province, CHINA, unless we both agree to some other location. You and Magnithink both consent to venue and personal jurisdiction in Nanjing, Jiangsu Province, CHINA.
19. SEVERABILITY
If any part of these Terms or the Privacy Policy is not enforceable, the rest of these Terms of Use and Privacy Policy still applies and is binding and any unenforceable term will be substituted reflecting our intent as closely as possible.
20. Miscellaneous
You agree to be responsible for obtaining and maintaining all telephone, computer hardware mobile devices and other equipment needed for access to and use of the Services, and all charges related thereto.
Magnithink operates and controls the Services from its offices in China. Magnithink makes no representation that the Services is appropriate or available in other locations. The information and materials provided on the Services are not intended for distribution to or use by any person or entity in any jurisdiction where such distribution or use would be contrary to law or regulation or which would subject Magnithink to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
Portions of the Services may be subject to United States export controls. You agree to comply with such export controls, as well as similar such controls in any applicable jurisdiction. Without limiting the foregoing, you agree that no software from the Services may be downloaded, exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading any software or applicable portion of the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
You agree that no joint venture, partnership, employment or agency relationship exists between you and Magnithink as a result of these Terms of Use or your use of the Services. These Terms of Use constitute the entire agreement between you and Magnithink with respect to your use of the Services and any other subject matter hereof and cannot be changed or modified by you except as expressly posted on the Services by Magnithink. The failure of Magnithink to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision, and no waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Use shall remain in full force and effect. Neither the course of conduct between the parties nor trade practice will act to modify these Terms of Use. These Terms of Use may not be assigned by you without Magnithink ’s prior written consent, but are freely assignable by Magnithink. The section headings used herein are for convenience only and shall not be given any legal import. Upon Magnithink’s request, you will furnish Magnithink any documentation, substantiation or releases necessary to verify your compliance with these Terms of Use. You agree that these Terms of Use will not be construed against Magnithink by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.
You agree that the following sections of these Terms of Use will survive any termination of these Terms of Use, your Account or the Services: Section F (Service Materials, Ownership, Trademarks and Feedback), Section H (Your Content), Section L (Termination), Section M (Disputes with Others), Section N (Disclaimers of Warranties and Damages, Limitations of Liability), Section P (Indemnification), Section Q (Governing Law and Remedies and Section R (Miscellaneous).
21. Terms Applicable to Apple iOS Users
The following terms are applicable solely if, and to the extent, you use the Services on an Apple iOS device:
· Acknowledgement: This Terms of Use is concluded between you and us only, and not with Apple LLC (“Apple”). We, not Apple, are solely responsible for the Services and the content thereof.
· Scope of License: The license granted to you for the Services is limited to a non-transferable license to use the Services on an iOS Product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
· Maintenance and Support: We are solely responsible for providing any maintenance and support services with respect to the Services, as specified in the Terms of Use, or as required under applicable law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services.
· Warranty: We are solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Services. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services.
· Product Claims: We, not Apple, are responsible for addressing any claims of you or any third party relating to the Services or your possession and/or use of that Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. The Terms of Use does not limit our liability to you beyond what is permitted by applicable law.
· Intellectual Property Rights: In the event of any third-party claim that the Services or your possession and use of that Service infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
· Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
· Developer Contact: Any questions, complaints or claims with respect to the Services should be directed to Magnithink at the email address listed below.
· Third Party Terms of Agreement: You must comply with applicable third-party terms of agreement when using the Services, e.g., if you use the Services through a social network, you must not be in violation of the social network agreement or terms of use when using the Services.
· Third Party Beneficiary: Apple, and Apple’s subsidiaries, are third party beneficiaries of the Terms of Use and will have the right (and will be deemed to have accepted the right) to enforce the Terms of Use against you as a third-party beneficiary thereof.
Contact Us: For all correspondence, please email us at: support@magnithink.com.
