Effective Date: 1.Nov, 2013
We, the MAGIC- Making Grade the Irresistible choice non-profit organization, (hereinafter "MAGIC" and "we"), have developed the application "MAGIC authoring and publication platform” or MAGICapp (hereinafter "MAGICapp" and “the Service” ) which can be found at www.magicapp.org. The MAGICapp is a collaboration tool for developers of GRADE related content (like medical guidelines and Evidence profiles, hereinafter "content”) to plan, author and publish their content. It is a tool to make the process of developing trustworthy guidelines and other pieces of knowledge using the GRADE methodology easier for both administrators, authors, reviewers, publishers and implementers. MAGICapp aims to improve the way this content is presented to the end user, using research results from the MAGIC research project and in close collaboration with EU funded DECIDE project. As the MAGICapp will provide us with insight into what makes content development, presentation and implementation successful, we also consider the MAGICapp a valuable research tool. For more insight into our research, visit www.magicproject.org.
We invite you to access our web sites and use the MAGICapp Service, but please note that your invitation is subject to your review and agreement with these Terms of Service. This document describes in detail your rights and our rights relating to the Service, so please review these Terms carefully.
We especially need you to understand that everything you do, post, write and publish on our platform is your sole responsibility. We are not responsible for any of the content added to the MAGICapp.
As a reader of content (both guidelines and other type of content) you need to remember that guidelines and other pieces of evidence are only written information and guidance, and although we and the authors of the content strive to make both the content correct and the service error free you should always use your own sound medical, professional and personal judgement if using the content in practice. The content is no substitute for individual patient assessment based upon a healthcare provider's examination of each patient and consideration of available facts and other factors unique to the patient.
Remember that standards and practices in medicine change and new data constantly becomes available. You should consult a variety of sources and when prescribing medications, the user is advised to check the product information sheet accompanying each drug to verify conditions of use and identify any changes in dosage schedule or contraindications.
Read more about this further down in this Terms of Service.
What Are The Terms of Service?
What Is The MAGICapp Service?
The MAGICapp Service consists of MAGICapp Software (as defined below), and other related products, services and web sites hosted or made available by MAGIC, which enable you to do many wonderful things on multiple computer devices and systems (collectively, the “Service”), including author, publish and read medical guidelines. Everything you add to your own or affiliated accounts in the Service is collectively defined as “Content”, including, but not limited to, Guidelines. In exchange for being enabled to use the Service, you agree to abide by these Terms.
If This Is A Contract, Who Are The Parties?
You are one party to the contract. The other party to this contract is the MAGIC- Making Grade the Irresistible choice MAGIC non-profit organization, developed alongside the MAGIC research program. The MAGIC non-profit organization is headquartered in Oslo, Norway. The MAGIC non-profit organization may be referred to in these Terms of Service as «MAGIC», “we” and sometimes “us”, while the MAGICapp service may be referred to as "MAGICapp" or the "Service".
Is This The Only Contract I Have with MAGICapp?
It depends on how you use our Service. If you install any MAGICapp Software on your computing devices (a feature soon to come), you may be asked to agree to an end user license agreement. If you use related MAGICapp products or services, such as MAGICapp Administration account, or participate in our User Forum, you may also need to enter into a separate agreement (usually by clicking “accept” or “agree”) with us. We refer to each of these as a “Separate Agreement.” If that happens, the Separate Agreement shall take precedence if there is a conflict between those terms and these Terms, to the extent of such conflict and with respect to the particular subject matter of that Separate Agreement.
Will These Terms Of Service Ever Change?
Changes in these Terms are almost certain to happen, due to changes in our Service and the laws that apply to us and you. If we make a change, we’ll do our best to provide you with advance notice, although in some situations, such as where a change is required to satisfy applicable legal requirements, an update to these Terms may need to be effective immediately. We’ll announce changes here at our site, and we also may elect to notify you of changes by sending an email to the address you have provided to us. We will also try to explain the reasons for the change.
If we do update these Terms, you are free to decide whether to accept the terms or to stop using our Service (see “How is My Account Closed” below); your continued use of the Service after the effectiveness of that update will be deemed to represent your agreement with, and consent to be bound by, the new Terms. Except for changes made by us as described here, no other amendment or modification of these Terms shall be effective unless set forth in a written agreement bearing a written signature by you and us. For clarity, email or other communications will not constitute an effective written agreement for this purpose.
What Do I Have To Do To Use MAGICapp as an unregistered user?
We restrict access to certain parts of our Site to users who have registered with us, but you may opt to use the MAGICapp services as an unregistered user. Note that you will not be able to access subscription-based guidelines, nor participate in administering, authoring or reviewing of guidelines as an unregistered user.
To use MAGICapp as an unregistered user you have to accept these Terms, but no other action is needed from you. You are free to access any open access Content published by our users.
Although you may use MAGICapp with only a web browser, in order to use MAGICapp on a variety of computing devices, you might need to install our client software on your computers, tablets and phones (a feature soon to come). Sorry, but obtaining those devices and paying for their connectivity and data plans is your responsibility. MAGICapp also has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Service.
What Do I Have To Do To Use MAGICapp as a registered user?
We restrict access to certain parts of our Site to users who have registered with us. First, you need to create an MAGICapp account. You must be a human. Accounts registered by “bots” or other automated methods are not permitted. You create an account by providing us with an acceptable username and email address, and creating a password. We refer to this as your “Account Information.” We encourage you to use a distinct and non-obvious username and password combination, ideally one that is different from what you use for other services. You are responsible for maintaining the accuracy, completeness and confidentiality of your Account Information, and you will be responsible for all activities that occur under your account, including activities of others to whom you have provided your Account Information. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account Information secure. If you discover any unauthorized use of your Account Information or suspect that anyone may be able to access your private Content, you should immediately change your password and notify our Customer Support team.
Second, although you may use MAGICapp with only a web browser, in order to use MAGICapp on a variety of computing devices, you might need to install our client software on your computers, tablets and phones (a feature soon to come). Sorry, but obtaining those devices and paying for their connectivity and data plans is your responsibility. MAGICapp also has no responsibility for the availability of the Internet and other telecommunication services necessary to access the Service.
Once I Have An Account, What Are My Rights In MAGICapp?
Once your account is created and you accept these Terms, we grant you a limited, non-exclusive license to use the Service subject to these Terms, for so long as you are not barred from receiving the Service under the laws applicable to you, until you close your account voluntarily or until we close your account pursuant to these Terms. In addition, we grant you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the MAGICapp Software provided to you by or on behalf of MAGIC, for the sole purpose of enabling you to use the MAGICapp Software and enjoy the benefit of the Service, subject to any applicable license terms provided with the MAGICapp Software and these Terms, until your rights are terminated in accordance with such license and/or these Terms. You do not obtain any other right or interest in MAGIC, MAGICapp or the Service.
Who is responsible for the Content on MAGICapp?
You understand that MAGIC is not responsible for any Content residing on MAGICapp servers that has been submitted, posted or displayed by any of our users. All Guidelines that are published through MAGICapp is published through Guideline Administration Accounts. The owner of these accounts are fully responsible for the Content, including Guidelines, affiliated with their account. Guideline administrators are given the possibility to issue their own disclaimers belonging to their guidelines.
Although MAGIC does not peer review, oversee or quality approve any guidelines published on our sites, we believe guideline making using our services will increase the likelihood of the production of high quality trustworthy guidelines. This is achieved through our commitment to the GRADE methodology (www.gradeworkinggroup.org) and our efforts to guide authors through the guideline making process in a structured way.
My Content Is Mine – What Does That Mean?
You retain copyright and any other rights you already held in your Content before you submitted, posted or displayed it on or through the Service. But you do have to grant MAGIC a limited license, as described below, so we can make your data accessible and usable on the Service. Other than this limited license and other rights you grant in these Terms, MAGIC acknowledges and agrees that we do not obtain any right, title or interest from you under these Terms in any of your Content.
Using our test or demo guidelines
You understand that any Test guideline or Demo guideline you will get access to is purely for the benefit of helping you understand how this application work, see the feature catalogue and learn how to use it. It must not under any circumstances be used to treat patients or make any sort of decisions.
MAGICapp is based on the GRADE methodology - what does that mean?
Our platform is set up to be able to author and publish guidelines using the GRADE methodology. The GRADE methodology has been and continue to be developed through a collaborative working group consisting of guideline developers. See www.gradeworkinggroup.org for more information. By agreeing to these Terms of Service you understand that MAGIC, nor the GRADE working group, are responsible for your application, use or understanding of the GRADE methodology. You furthermore understand that we will strive to keep our application of the GRADE methodology in the MAGICapp up to date with the latest changes, but we cannot promise this will always be the case. We have based the application on our understanding of GRADE and you will have to accept that it might not always be the way you or others understand it. The supporting information, FAQ and suggestions will ideally be taken from the official GRADE material, but in instances that is not possible we will have to produce our own material. All the material you have access to, supporting information, FAQ and suggestions, both from MAGIC and from the GRADE working group are only offered a help and by accepting these terms you understand that you use them at your own discretion. Part of the GRADE methodology is based on reliance on statistical calculations and generation of tables. Although we will do our best for preventing it from happening, you understand that we are not liable for computing errors, bugs or miscalculations in our systems. You should always use your common sense and double check all numbers before publishing.
What Is The License I Have To Grant To MAGICapp?
In order to enable MAGIC to operate the Service, we must obtain from you certain license and other rights to the Content you submit so that our processing, maintenance, storage, technical reproduction, back-up and distribution and related handling of your Content doesn’t infringe applicable copyright and other laws. This means that by using the Service and uploading Content, you grant MAGIC a license to display, perform and distribute your Content and to modify (for technical purposes, e.g., making sure content is viewable on smart phones as well as computers) and reproduce such Content to enable MAGIC to operate the Service. You also agree that MAGIC has the right to elect not to accept, post, store, display, publish or transmit any Content in our sole discretion.
You agree that these rights and licenses are royalty free, irrevocable and worldwide (for so long as your Content is stored with us), and include a right for MAGIC to make such Content available to, and pass these rights along to, others with whom MAGIC has contractual relationships related to the provision of the MAGICapp Service, solely for the purpose of providing such services, and to otherwise permit access to or disclose your Content to third parties if MAGIC determines such access is necessary to comply with its legal obligations.
If you elect to use any third party service or application that is integrated with MAGICapp, you also agree that the licenses granted to MAGIC in the preceding paragraph shall apply to Content that is submitted or uploaded through such third party service or application. If the third party service or application you elect to use would access or extract Content, you grant MAGIC the right and license to enable such access to your Content.
Inasmuch as we rely upon your rights to upload and distribute your Content, you represent and warrant to MAGIC that you have the unfettered legal rights and authority to submit your Content to MAGICapp, and to make any publication or other distribution of that Content in your use of the Service. You also represent to us that, by submitting Content to MAGICapp and granting MAGIC the rights described in these Terms, you are not infringing the rights of any person or third party.
Finally, you understand and agree that MAGIC, in performing the required technical steps to provide the Service to our users, may make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks,
Are There Rules About What I Can Do On MAGICapp?
Yes. Your use of the Service must be in accordance with these Terms. When it comes to your use of MAGICapp, you agree that you are responsible for your own conduct and all conduct under your account. This means all Content – such as text, images, software, videos and anything else you can think of, no matter what the form or technical structure (collectively, “Content”) – created, transmitted, stored or displayed in your account, is your sole responsibility as the person who created the Content or introduced it into the Service. This applies whether the Content is kept private, shared or transmitted using the Service or any third party application or services integrated with MAGICapp.
You may not use our Services:
a) to send, knowingly receive, upload, download, use or re-use any Academic Papers without authorization. You may perform these actions only if you are the copyright owner, have the copyright owner’s permission, are permitted to do so under your publishing agreement or your institution’s license agreement or under license from an Open Access database or under a Creative Commons license.
b) in any way that breaches any applicable local, national or international law or regulation;
c) in any way that is unlawful or fraudulent, or that advocates, promotes or assists any unlawful act, or that may deceive any person or that breaches any legal duty owed to a third party, such as a contractual duty or a duty of confidence or that may be harmful to a user;
d) in any way that is defamatory of any person, obscene, offensive, hateful or inflammatory;
e) in any way that promotes sexually explicit material, violence, or discrimination of any kind;
f) in any way that infringes any copyright, database right, trade mark or other intellectual property right of any other person;
g) in any way that is threatening, abusive or invades another’s privacy, or is likely to harass, upset, embarrass, alarm or annoy any other person;
h) to impersonate any person, or to misrepresent your identity or affiliation with any person;
i) to upload, post, email, message, transmit or otherwise make available or initiate any content that includes any unsolicited or unauthorised advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, “market research”, or any other form of solicitation whether it be for commercial or non-commercial purposes. This prohibition includes but is not limited to (a) using MAGICapp invitations to send messages to people who don’t know you or who are unlikely to recognize you as a known contact; (b) using MAGICapp to connect to people who don’t know you and then sending unsolicited promotional messages to those direct connections without their permission.
j) to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware.
k) Unless you have express prior written permission, you may not use any spider- or bot-like system, software or other device or program (whether automated or otherwise) to extract content, data, information or other material from the Site.
You also agree:
Not to access without authority, interfere with, damage or disrupt:
a) any part of our Site.
b) any equipment or network on which our Site is stored.
c) our Software or any software used in the provision of our Site.
d) any equipment or network or software owned or used by any third party.
e) to use our Services only for medical guideline related activity (e.g, not to store your personal collection of movies, music and other large file types unrelated to your medical guideline activities).
Will MAGIC Look At My Content?
Will Anyone Else See My Content?
I’m Guessing MAGIC Has Some Rights Relating To The Service?
We do. They’re described here:
While you, or your institution, own the Content you store with MAGICapp, you acknowledge and agree that MAGIC (and our licensors) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software comprising a part of the Service that is hosted on MAGICapp’s servers and all software deployed by you or a third party to enable clipping of Content originating at another party’s web site, such as Epistemonikos, Mendeley, PubMed or any of the MAGICapp software applications for compatible computing devices that enable access and use of the Service through such device (the “MAGICapp Software”, a feature soon to come).
Intellectual Property Rights.
In agreeing to these Terms, you also agree that the rights in the Service and MAGICapp Software, including all intellectual property rights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms and any Separate Agreement. In particular, you agree to not modify, create derivative works of, decompile or otherwise attempt to extract source code from any MAGICapp Software, unless you are expressly permitted to do so under an open source license or we give you express written permission.
Right to Modify the Service.
We retain the right, in our sole discretion, to implement new elements as part of and/or ancillary to the Service and any MAGICapp Software, including changes that may affect the previous mode of operation of the Service. We expect that any such modifications will enhance the overall Service, but it is possible that you may not agree with us. We also reserve the right to establish limits to the nature or size of storage available to you, the number of transmissions and email messages, the nature or size of any index or library information, the nature of, or your continued ability to access or distribute, your Content and other data, and impose other limitations at any time, with or without notice. For example, if you use the free MAGICapp service, you will not enjoy all of the benefits provided to subscribers of the MAGICapp Guideline Administration service.
You also acknowledge that a variety of MAGICapp actions may impair or prevent you from accessing your Content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that MAGICapp has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any Content. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any part of the Service. However, if you are a subscriber for MAGICapp Guideline Administration service and find that any such modifications or interruption of the Guideline Administration Service adversely affects you, you may notify us, explain the adverse impact the modification has created and, if you desire, request a termination of your Guideline Administration Service Subscription. Upon receipt of any such request, we will endeavor to promptly remedy the adverse impact caused by the modification, extend the duration of your Guideline Administration Service subscription for a period of time equal to the interruption and/or refund a portion of your Guideline Administration Service subscription fee equal to the remaining unused term of the Administration Service subscription, as we determine appropriate.
Right to Engage Third Parties.
MAGIC may from time to time engage certain affiliates or other third parties to provide technical or other services relating to all or part of the Service to you, and you hereby agree that such third party involvement is acceptable.
Right to Use Third-Party Software.
MAGICapp may from time to time include as part of the Service and MAGICapp Software computer software supplied by third parties which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. We provide information about some of this third party software in our FAQ. MAGIC expressly disclaims any warranty or other assurance to you regarding such third party software.
Right to Update Our Software.
In connection with any modification of the Service, MAGICapp may automatically download software updates on your computers and devices from time to time with the intention of improving, enhancing, repairing and/or further developing the Service. MAGICapp will endeavor to provide you with the option of whether or not to install the update; however, in certain circumstances (e.g., security risks), MAGICapp may require you to install the update to continue accessing the Service. In all cases, you agree to permit MAGICapp to deliver these updates to you (and you to receive them) as part of your use of the Service.
Do These Terms Apply To Users of MAGICapp Guideline Administration accounts ?
A MAGICapp Guideline Administration account is needed to plan, develop and publish guidelines. If you are participating in the development of a guideline, including, without limitation, being administrator, author and/or reviewer/ viewer, you are using the Service for guideline development as part of an MAGICapp Guideline Administration account, and the use of the Service is governed by these Terms, except where the Separate Agreement governing the MAGICapp Guideline Administration account provides conflicting terms. A User who creates a MAGICapp Administration account enters into such a Separate Agreement on behalf of the users of the MAGICapp Guideline Administration account and has the responsibility to share the terms of such Separate Agreement with each Guideline Administration account user. Please review the contract terms applicable to your use of the Service with the ones responsible for the MAGICapp Guideline Administrator accounts you are affiliated with.
If you are participating in guideline development as a user of an MAGICapp Guideline Administration account, you should know that the Administrator of the MAGICapp Guideline Administration account has rights to restrict your access to the Content contained within the MAGICapp Guideline Administration account and also has rights to access, reproduce, distribute and otherwise affect, and impose additional rules regarding, such Content.
However, the Administrator is not provided any information about any personal MAGICapp account you may have (we will not tell them), with the exception of your existence in the system and your contact information. None of your rights in your personal account are affected if you also have access to guidelines in an MAGICapp Administration account, and the Content in your personal account is not accessible, or otherwise affected, by the Administrator.
How Does MAGICapp Respond To Copyright Or Other Intellectual Property Violations?
We respond to clear and complete notices of alleged infringement of copyright, trademark or other intellectual property laws that satisfy the requirements in these Terms. Note that each owner of intellectual property is responsible for protecting their rights and taking any legal or other action they determine to be appropriate to do so, and MAGIC does not accept any obligation to take any particular action to enforce or protect any party’s intellectual property rights.
Can Kids Use MAGICapp?
Where Does My Data Go?
The MAGICapp Service is available worldwide, but our data processing operations take mainly place in the United States, through the use of Amazon web servers. If you use the Service, you acknowledge that you may be sending electronic communications (including your personal account information and Content), through computer networks hosted by MAGICapp and third parties located in California and other locations in the United States and other countries. As a result, your use of the Service will likely result in interstate and possibly international data transmissions, and your use of the Service shall constitute your consent to permit such transmissions.
How Is My Account Closed?
You may close your account with our Service at any time, for any reason (or no reason), and you don’t even have to give us notice. However, if you desire to deactivate your account you need to take certain specific steps, which are described here.
MAGIC may suspend access to your account, or close your account, with or without notice according to these Terms. Reasons for MAGIC suspending or closing your account may include, without limitation: (i) breach or violation of these Terms or any Separate Agreement, (ii) an extended period of inactivity (determined in MAGIC’s sole discretion), (iii) your nonpayment of any fees or other sums due MAGIC or any other party related to your use of the Service, (iv) the discontinuance or material modification of the Service (or any part thereof) or (vi) unexpected technical or security issues or problems.
In most cases, in the event we elect to close your account , we will provide at least 30 days advance notice to you at the email address you have provided to us, so you have a chance to retrieve any Content stored on MAGICapp’s servers (unless we determine that we are legally prohibited from enabling you to do so). After the expiration of this notice period, you will no longer be able to retrieve Content contained in that account or otherwise use the Service through that account.
What Happens To My Account When I Die?
MAGIC’s pledge to protect the privacy of your Content will continue, even after your death or incapacity. If you wish to enable someone to have access to your Content or Account Information after you are no longer able to provide them access, you need to implement a process for providing your Account Information to them. We will not provide your Account Information, or your Content, to anyone, even next of kin, unless we determine that we are legally obligated to do so. We encourage you to include your Account Information, with instructions on how to access your Content, in your will or other estate plans, so that anyone you wish to have access to your account will have the means to do so.
If I Have A Great Idea To Share With MAGIC, What Are My Rights?
When you submit any ideas, suggestions, documents and/or proposals relating to the Service (or other products or services) to MAGIC through the “Contact Us,” User Forum or Support interfaces or through any other mechanism (collectively, “Contributions”), you acknowledge and agree that: (i) your Contributions do not contain confidential or proprietary information; (ii) MAGIC is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (iii) MAGIC shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way; (iv) MAGIC may have something similar to the Contributions already under consideration or in development; (v) your Contributions automatically become the property of MAGIC without any obligation of MAGIC to you; and (vi) you are not entitled to any accounting, compensation or reimbursement of any kind from MAGIC under any circumstances.
Does MAGICapp Serve Ads?
Our business model is to make the Service so valuable that guideline organization will opt to pay for a Administration Service.
However, we may opt to display advertisements and promotions on or in connection with the Service, some of which may be paid for by third parties. These messages may promote MAGICapp products and services, demonstrate various uses of our Service and promote certain third party applications and services that work with MAGICapp. We will pledge to you that we will not engage in any data mining of your information or Content in order to target advertising at you.
Inasmuch as some advertising or other messaging content we provide will be based upon information provided by third parties, we shall not be responsible or liable for any loss or damage of any sort incurred by you as a result of any advertisements or other messages. Furthermore, your interactions with advertisers found on or through the Service, including, without limitation, all reliance upon advertising, all commercial transactions and legal obligations associated therewith, are solely between you and such advertisers.
What Else Do I Need To Know?
We may include or recommend third party resources, materials and developers and/or links to third party websites and applications as part of, or in connection with, the Service. We have no control over such sites or developers and, accordingly, you acknowledge and agree that (i) we are not responsible for the availability of such external sites or applications; (ii) we are not responsible or liable for any content or other materials or performance available from such sites or applications and (iii) we 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 such content, materials or applications.
You agree to indemnify and hold MAGIC, its subsidiaries, affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of these Terms of Service or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
The Service Is Available “As Is.” YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, MAGIC EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) MAGIC DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ALL ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MAGIC OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
Limitation of Liability.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MAGIC, ITS SUBSIDIARIES, AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, HEALTH, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF MAGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) 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 SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE; (v) MAGIC’S ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SERVICE; (viii) ANY ADVERTISING CONTENT OR YOUR PURCHASE OR USE OF ANY ADVERTISED PRODUCT OR SERVICE; (ix) THE TERMINATION OF YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS OF THESE TERMS OF SERVICE; OR (x) ANY OTHER MATTER RELATING TO THE SERVICE.
Exclusions and Limitations.
NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THOSE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION (IF ANY) WILL APPLY TO YOU AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
If MAGIC Has To Send Me Notice Of Something, How Will That Happen?
This is another reason why it’s important for you to make sure your Account Information is accurate, complete and up to date. We may provide you with notices by email, regular mail or postings on the web site(s) related to the affected Service.
How Can I Send A Notice to MAGIC?
Except where these Terms or any Separate Agreement specifically provide for use of a different means or address for notice, any notice to MAGIC or MAGICapp must be delivered by our feedback service or in special cases email to legal AT MAGICapp DOT org. This email address may be updated as part of any update to these Terms of Service. If you are unable to deliver notice via email, you may send a notice to us at the following address (as applicable to your Service provider):
c/o Linn Brandt
Thor Olsens gt 10
Attention: Legal Notice
Are There Countries Where I’m Not Allowed To Use MAGICapp?
You may not use or otherwise export the Service or any MAGICapp Software except as authorized by Norwegian law and the laws of the jurisdiction in which the Service is hosted and accessed by you, or where your use any of the MAGICapp Software.
What Law Applies To My Use Of MAGICapp?
These Terms and the relationship between you and MAGIC (including any dispute) shall be governed in all respects by the laws of Norway.
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 the Terms of Service remain in full force and effect.
What Do I Do If I Think I Have A Claim Against MAGIC?
Let us Know About Your Complaint.
We want to know if you have a problem so we encourage you to contact our Customer Support team through our feedback forum if you have any concerns with respect to the operation of the Service or any MAGICapp Software, as we want to ensure that you have an excellent experience.
Initiating a Formal Claim.
If you conclude that we have not satisfied your concern and that you must pursue legal action, you agree that your claim must be resolved exclusively by the processes set forth in these Terms. MAGIC provides the Service to you on the condition that you accept the dispute resolution provisions described below, so if you initiate any claim against MAGIC in any other manner, you shall be in violation of these Terms and you agree that MAGIC shall be entitled to have such action dismissed or otherwise terminated and you agree to reimburse MAGIC for its reasonable costs incurred in defending against such improperly initiated claim. You agree that, prior to initiating any formal proceedings against MAGIC, you will send us a notice to our attorneys at legal AT MAGICapp DOT org and state that you are providing a “Notice of Dispute.” Upon receipt of a Notice of Dispute, you and we shall attempt to resolve the dispute through informal negotiation within sixty (60) days from the date the Notice of Dispute is sent. If the dispute remains unresolved, either you or we may initiate formal proceedings according to these Terms.
Except where our dispute is being resolved pursuant to an arbitration (as provided below), you agree that any claim or dispute you may have against MAGIC must be resolved exclusively by a official court located in Oslo, Norway. You agree to submit to the personal jurisdiction of the courts located within Oslo, Norway for the purpose of litigating all such claims or disputes.
Alternative Dispute Resolution Process.
Unless you are subject to the Arbitration Agreement set out below, if a claim arises between you and MAGIC where the total value of such claim is less than US$10,000, the party initiating the claim may elect to have the dispute resolved pursuant to a binding arbitration process that does not require attendance in person. This “Alternative Dispute Resolution Process” shall be initiated by either party sending notice to the other, in which event you and MAGIC agree to use our reasonable efforts to agree within thirty (30) days upon an individual or service to manage the Alternative Dispute Resolution Process (the “Arbitration Manager”) according to the following requirements: (i) neither party shall be required to attend any proceeding in person, (ii) the proceeding will be conducted via written submissions, telephone or online communications or as otherwise agreed upon, (iii) the fees for the Dispute Manager will be borne equally by the parties or be submitted to the Dispute Manager to determine as part of the dispute and (iv) the judgment rendered by the Arbitration Manager may be entered in any court of competent jurisdiction for enforcement.
You and MAGIC agree that any and all disputes or claims that have arisen or may arise between us - except any dispute relating to the enforcement or validity of your, our or either of our licensors’ intellectual property rights - shall be sought resolved through final and binding arbitration, rather than in court.
Our arbitration proceedings would be conducted by the Norwegian legal system, under its rules and procedures applicable at that time. The arbitration shall be held in Norway. If the value of the relief sought is US$10,000 or less, either of us may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on us subject to the arbitrator's discretion to require an in-person hearing. Attendance at an in-person hearing may be made by telephone by you and/or us, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of Norway, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different MAGICapp users, but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court possessing jurisdiction over the parties.
If the amount of the claim exceeds US$10,000 and you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, MAGIC will pay as much of the filing, administration and arbitrator fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If the arbitrator determines the claim(s) you assert in the arbitration are frivolous, you agree to reimburse MAGIC for all fees associated with the arbitration paid by MAGIC on your behalf, which you otherwise would be obligated to pay.
YOU AND MAGIC AGREE, AS PART OF THE ARBITRATION AGREEMENT, THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS PART OF ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. WE REFER TO THIS AS THE “PROHIBITION OF CLASS AND REPRESENTATIVE ACTIONS.” UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN YOUR OR OUR CLAIM WITH ANOTHER PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE OR CLASS PROCEEDING. THE ARBITRATOR MAY ONLY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER MAGICapp USERS.
Except with respect to the Prohibition of Class and Representative Actions, if a court decides that any part of this Arbitration Agreement is invalid or unenforceable, the other parts of this Arbitration Agreement shall continue to apply. If a court decides that the Prohibition of Class and Representative Actions is invalid or unenforceable, then the entire Arbitration Agreement shall be null and void. The remainder of the User Agreement and its Legal Disputes Section will continue to apply.
Claims Are Time-Barred.
You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.
A couple of final, but important, points. First, these Terms constitute the entire agreement between you and MAGIC and govern your use of the Service, except, and then only to the extent that you have entered into a Separate Agreement. These Terms supersede any prior agreements or earlier versions of these Terms between you and MAGIC for the use of the Service. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and these Terms shall not affect your legal relationship with such third party.
Second, you acknowledge and agree that each affiliate of MAGIC shall be a third party beneficiary to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms.Finally, the section headings in these Terms of Service are for convenience only and have no legal or contractual effect.