MAGMAZINES TERMS OF SERVICE
Date of Last Revision: December 21, 2011
Welcome to MagmaZines!
MagmaZines, Inc. ("MagmaZines," "we," "us," "our") provides its services (described below) to you through its website located at www.magmazines.com (the "Site"), mobile and tablet applications and related services (collectively, such services, including any new features and updates, and the Site, the "Service(s)"), subject to the following Terms of Service (as amended from time to time, the "Terms of Service"). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time without further notice. You should periodically visit this page to review the current Terms of Service so you are aware of any revision to which you are bound. If we do this, we will post the changes to these Terms of Service on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Service after any such changes constitutes your acceptance of the new Terms of Service. If you do not agree to abide by these or any future Terms of Service, do not use or access (or continue to use or access) the Service. It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Service and to review such changes.
Access and Use of the Service
Services Description: The Service is designed to provide a platform for users ("Publishers") to publish online magazine-style content ("Magazines") and to provide users ("Readers") with applications for accessing rich content online or on a mobile device.
Note Regarding Content: When using the Service, you will be exposed to Magazines from many different sources, and MagmaZines is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Magazines. You acknowledge that you may be exposed to Magazine content that is inaccurate, offensive, indecent, or objectionable, and you hereby waive (and agree to waive), any legal or equitable rights or remedies you may have against MagmaZines with respect thereto. The Service may not be appropriate or available in all geographic locations, so you are responsible for compliance with local law. Your use of the Service is at your own risk. You agree to comply at all times with our Community Guidelines, located at www.magmazines.com/communityguidelines, as it may be updated by MagmaZines from time to time.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account (with or without your authorization). You agree to (a) immediately notify MagmaZines of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. MagmaZines will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service: MagmaZines reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that MagmaZines shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that MagmaZines may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that Publisher content, reviews, data or other content will be retained by the Service and the maximum storage space that will be allotted on MagmaZines's servers on your behalf. You agree that MagmaZines has no responsibility or liability for the deletion or failure to store any Publisher content, reviews, data or other content maintained or transmitted by the Service. You acknowledge that MagmaZines reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that MagmaZines reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: The Service includes certain services that are available via a mobile or tablet device, including the ability to browse the Service from a mobile device and the ability to access certain features through an application downloaded and installed on a mobile or tablet device (collectively, the "Mobile Services"). To the extent you access the Service through a mobile device, your wireless service carrier's standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
Embedded Advertising: As a Publisher, you have the option to grant us the right to market, sell and serve text, in-text, graphical, audio, video and other advertisements ("Ads") for display within your Magazines (such MagmaZines-served Ads, "MagmaZines Ads") on revenue share basis with you. We may source such MagmaZines Ads ourselves or through third parties engaged with direct advertisers, agencies, ad networks, ad exchanges or ad servers ("Advertisers"). The Services may also allow a Publisher to insert Ad Tags (as defined below) into Magazines in locations chosen by such Publisher. An "Ad Tag" is a piece of code provided by MagmaZines (or Advertisers) to Publisher to be embedded in a Magazine for the purpose of serving an Ad at a specific location. If you place Ad Tags within your Magazines, these will be "Publisher Ads." Revenue share with respect to such Ads is described below in our Fees Policy located at www.magmazines.com/fees. You agree that you (a) will only use Ad Tags within the Services, (b) will not remove, conceal, obscure, obliterate or otherwise impair the display of any MagmaZines Ads, and (c) MagmaZines Ads may be displayed in your Magazines even on Third Party Platforms (as defined below). Each Publisher agrees to comply with all technical specifications and other requirements provided by MagmaZines from time to time with respect to the Services. MagmaZines reserves the right to remove or cease the display of any Ads at any time, for any reason.
Third Party Publishing Platforms: The Services may provide you with the ability, as a Publisher, to publish your Magazines on third party publishing platforms, such as newsstands offered by Apple, Inc. or Amazon.com ("Third Party Platforms"). Such Third Party Platforms may require you to create an account with the applicable Third Party Platform, agree to additional terms and policies and/or require you to pay fees. MagmaZines has no control over Third Party Platforms and MagmaZines is not responsible for and does not endorse such Third Party Platforms. You further acknowledge and agree that MagmaZines shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any connections, content, goods or services available on or through any Third Party Platforms. Any dealings you have with providers of Third Party Platforms found while using the Service are between you and the provider, and you agree that MagmaZines is not liable for any loss or claim that you may have against any such provider.
Conditions of Use
User Conduct: You are solely responsible for all reviews, information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (other than Advertisements) ("content") that you publish, upload, post, publish or display (hereinafter, "publish") or email or otherwise transmit or use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by MagmaZines. MagmaZines reserves the right to investigate and take appropriate legal action against anyone who, in MagmaZines's sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
- publish, post, email or otherwise transmit any content that (i) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful racially, ethnically or otherwise objectionable; (ii) you do not have a right to transmit under any law or under contractual or fiduciary relationships; (iii) poses or creates a privacy or security risk to any person; (iv) infringes any intellectual property or other proprietary rights of any party; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation; (vi) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (vii) in the sole judgment of MagmaZines, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose MagmaZines or its users to any harm or liability of any type;
- further or promote any criminal activity or enterprise or provide instructional information (through your Publisher content or otherwise) about illegal activities;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- violate any applicable local, state, national or international law, or any regulations having the force of law; or
- circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Magazines, obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Payments and Fees: To the extent the Service or any portion thereof is made available for any fee, Readers may be required to make in-app payments or to select a payment subscription plan and provide MagmaZines information regarding your credit card or other payment instrument. As a Reader or a Publisher, you represent and warrant to MagmaZines that any payment information you provide is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay MagmaZines such fees in accordance with the terms set forth in the Service and these Terms of Service. If you subscribe to the Service or any portion thereof (as a Reader or a Publisher), you hereby authorize MagmaZines to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let MagmaZines know within sixty (60) days after the date that MagmaZines charges your payment instrument. You will be responsible for all taxes associated with the Service and, if you are a Publisher, the sale of your Magazines, other than U.S. taxes based on MagmaZines's net income.
Publisher Commissions and Ad Revenue Share: Information regarding our pricing, commissions and revenue share options can be found in our Fees Policy located at www.magmazines.com/fees. We reserve the right to change MagmaZines's prices and the Fees Policy. If MagmaZines changes such prices, MagmaZines will provide notice of the change on the Site or by email to you, at MagmaZines's option, at least 30 days before the change is to take effect. Your continued use of the Service after such changes become effective constitutes your agreement to pay the changed amount. We encourage our Publishers to explore different ways generating revenue through the Service, but by using our Service, you acknowledge and agree that we may change our Fees Policy at any time as described above.
MagmaZines is not responsible for making payments for any payment based on: (a) any amounts which result from any fraudulent transactions generated by any person, bot, automated program or similar device, as reasonably determined by MagmaZines, including, without limitation, any transactions (i) originating from any Publisher's IP addresses or computers under Publisher's control, or (ii) solicited by payment of money, false representation, or request for end users to respond or interact with Ads, or (b) any transactions co-mingled with a significant number of invalid transactions described in clause (a) above, or as a result of any breach of these Terms of Service by Publisher.
Commercial Use: Except as expressly authorized herein or in the Service, you agree not to download, display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or transmit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service (including without limitation any Magazines). Unless expressly authorized herein or in the Service, the Service is for Readers' personal use and may not be used by Readers for direct commercial endeavors. You will not download any Magazines unless you see a "download" or similar link displayed by MagmaZines in the Service for that Magazine. You shall not exploit any Magazines for any other purposes without the prior written consent of MagmaZines or the respective licensors of the Magazines. MagmaZines and its licensors reserve all rights not expressly granted in and to the Service and the Magazines.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content ("Service Content") that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by MagmaZines, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you shall not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Notwithstanding the foregoing, MagmaZines grants the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. We reserve the right to revoke such permission either generally or in specific cases at any time and for any reason. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith (including without limitation MagmaZines applications and plug-ins) is the property of MagmaZines, our affiliates and our partners (the "Software"). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. By using the Software, you agree that we may automatically download and install Software updates from time to time. Any rights not expressly granted herein are reserved by MagmaZines.
The MAGMAZINES name and logo are trademarks and service marks of MagmaZines (collectively the "MagmaZines Trademarks"). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to MagmaZines. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of MagmaZines Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of MagmaZines Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will MagmaZines be liable in any way for any content (including advertisements or reviews) published by third parties or at the direction of users, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content published, emailed or otherwise transmitted via the Service. You acknowledge that MagmaZines does not pre-screen content, but that MagmaZines 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 Service. Without limiting the foregoing, MagmaZines and its designees shall have the right to remove any content that violates these Terms of Service or is deemed by MagmaZines, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
User Content Published Through the Service: You are solely responsible for the content and other materials you publish on or through the Service or transmit to or share with other users or recipients (other than Ads), as a Publisher or otherwise (collectively, "User Content"). You will not publish any content that you did not create or that you do not own all right, title and interest in and to, including, without limitation, all copyright and rights of publicity contained therein. By publishing any User Content you hereby grant and will grant MagmaZines and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable (through multiple tiers), perpetual, irrevocable license to copy, display, transmit, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed. You agree that this license includes the right, solely through the distribution channels that we make available through the Service and in accordance with the publication preferences that you select in the Services, for MagmaZines to make User Content available to other companies, organizations or individuals who partner with MagmaZines for the syndication, broadcast, distribution or publication of User Content on other media and services,. For clarity, MagmaZines will not resell your Magazines on a standalone basis without your consent; any distribution pursuant to the foregoing license will be in accordance with any payment or revenue share terms as described herein and in the Service.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service ("Submissions"), provided by you to MagmaZines are non-confidential and MagmaZines shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that MagmaZines may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of MagmaZines, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks, services or devices.
Copyright Complaints: MagmaZines respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify MagmaZines of your infringement claim in accordance with the procedure set forth below.
MagmaZines will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to MagmaZines's Copyright Agent at firstname.lastname@example.org. (Subject line: "DMCA Takedown Request"). You may also contact us by mail at: email@example.com.
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to publish and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, MagmaZines will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, MagmaZines has adopted a policy of terminating, in appropriate circumstances and at MagmaZines's sole discretion, users who are deemed to be repeat infringers. MagmaZines may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. MagmaZines has no control over such sites and resources and MagmaZines is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that MagmaZines shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any connections, content, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that MagmaZines is not liable for any loss or claim that you may have against any such third party.
In addition, MagmaZines is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Integrated Services. As such, MagmaZines is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Integrated Services. MagmaZines enables these features merely as a convenience and the inclusion of such features does not imply an endorsement or recommendation.
Apple-Enabled Software Applications
MagmaZines offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. ("Apple"), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, "Apple-Enabled Software"), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
- MagmaZines and you acknowledge that these Terms of Service are concluded between MagmaZines and you only, and not with Apple, and that as between MagmaZines and Apple, MagmaZines, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iPhone OS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be MagmaZines's sole responsibility, to the extent it cannot be disclaimed under applicable law.
- MagmaZines and you acknowledge that MagmaZines, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-Enabled Software or the end-user's possession and use of that Apple-Enabled Software infringes that third party's intellectual property rights, as between MagmaZines and Apple, MagmaZines, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- 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.
- If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to MagmaZines as follows:
MagmaZines and you acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms of Service with respect to the Apple-Enable Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enable Software as a third party beneficiary thereof.
Indemnity and Release
You agree to release, indemnify and hold MagmaZines and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys' fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE (INCLUDING WITHOUT LIMITATION ANY MAGAZINES) IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MAGMAZINES EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
MAGMAZINES MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PUBLICATIONS, REVIEWS, PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MAGMAZINES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MAGMAZINES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES OR IMAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT SHALL MAGMAZINES'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID MAGMAZINES IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
At MagmaZines's or your election, all disputes, claims, or controversies arising out of or relating to the Terms of Service or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in San Francisco, California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in the Terms of Service. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator's decision and award shall be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms of Service and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms of Service, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys' fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.
You agree that MagmaZines, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if MagmaZines believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. MagmaZines may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that MagmaZines may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that MagmaZines shall not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and MagmaZines will have no liability or responsibility with respect thereto. MagmaZines reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and MagmaZines and govern your use of the Service, superseding any prior agreements between you and MagmaZines with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service shall be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and MagmaZines agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California. The failure of MagmaZines to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service 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 Service remain in full force and effect. Except as expressly set forth herein, there are no third party beneficiaries to these Terms of Services. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Questions? Concerns? Suggestions?
Please contact us at firstname.lastname@example.org to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.