1. Definitions.
"MagicHoop.com" is the interactive on-line order service on the World Wide Web of the Internet, consisting of order services and content provided by MagicHoop.com, affiliates of MagicHoop.com and other third parties. "Subscriber" means each person who establishes or accesses a connection ("Account") for access to and use of MagicHoop.com.
2. General.
(A) This Agreement, which incorporates by reference other provisions applicable to use of MagicHoop.com, including, but not limited to, supplemental terms and conditions set forth in paragraph 14 hereof ("Supplemental Terms") governing the use of certain specific material contained in MagicHoop.com, sets forth the terms and conditions that apply to use of MagicHoop.com by Subscriber. By using MagicHoop.com (other than to read this Agreement for the first time), Subscriber agrees to comply with all of the terms and conditions hereof. MagicHoop.com allows only 1 (one) account per registered Subscriber. The right to use MagicHoop.com is personal to Subscriber and is not transferable to any other person or entity. Subscriber is responsible for all use of Subscribers Account (under any screen name or password) and for ensuring that all use of Subscribers Account complies fully with the provisions of this Agreement. Subscriber shall be responsible for protecting the confidentiality of Subscribers password.
(B) MagicHoop.com shall have the right at any time to change or discontinue any aspect or feature of MagicHoop.com, including, but not limited to, content, hours of availability, and equipment needed for access or use.
3. Changed Terms.
MagicHoop.com shall have the right at any time to change or modify the terms and conditions applicable to Subscribers use of MagicHoop.com, or any part thereof, or to impose new conditions, including, but not limited to, adding fees and charges for use. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on MagicHoop.com, or by electronic or conventional mail, or by any other means by which Subscriber obtains notice thereof. Any use of MagicHoop.com by Subscriber after such notice shall be deemed to constitute acceptance by Subscriber of such changes, modifications or additions.
4. Equipment.
Subscriber shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of MagicHoop.com and all charges related thereto.
5. Subscriber Conduct.
(A) Subscriber shall use MagicHoop.com for lawful purposes only. Subscriber shall not post or transmit through MagicHoop.com Interactive any material which violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, or which, without MagicHoop.com express prior approval, contains advertising or any solicitation with respect to products or services. Any conduct by a Subscriber that in MagicHoop.coms discretion restricts or inhibits any other Subscriber from using or enjoying MagicHoop.com Interactive will not be permitted. Subscriber shall not use MagicHoop.com to advertise or perform any commercial solicitation, including, but not limited to, the solicitation of users to become subscribers of other on-line information services competitive with MagicHoop.com.
(B) MagicHoop.com contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of MagicHoop.com are copyrighted as a collective work under the United States copyright laws. Subscriber may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the content, in whole or in part. Subscriber may download copyrighted material for Subscribers personal use only. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express permission of MagicHoop.com and the copyright owner. In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made. Subscriber acknowledges that it does not acquire any ownership rights by downloading copyrighted material.
(C) Subscriber shall not upload, post or otherwise make available on MagicHoop.com any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right and the burden of determining that any material is not protected by copyright rests with Subscriber. Subscriber shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission. By submitting material to any public area of MagicHoop.com, Subscriber automatically grants, or warrants that the owner of such material has expressly granted MagicHoop.com the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. Subscriber also permits any other Subscriber to access, view, store or reproduce the material for that Subscribers personal use. Subscriber hereby grants MagicHoop.com the right to edit, copy, publish and distribute any material made available on MagicHoop.com by Subscriber.
(D) The foregoing provisions of Section 5 are for the benefit of MagicHoop.com, its subsidiaries, affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf.
6. Disclaimer of Warranty; Limitation of Liability.
(A) SUBSCRIBER EXPRESSLY AGREES THAT USE OF MagicHoop.com INTERACTIVE IS AT SUBSCRIBERS SOLE RISK. NEITHER MagicHoop.com, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT MagicHoop.com WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF MagicHoop.com, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH MagicHoop.com.
(B) MagicHoop.com IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
(C) THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. SUBSCRIBER SPECIFICALLY ACKNOWLEDGES THAT MagicHoop.com IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER SUBSCRIBERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH SUBSCRIBER.
(D) IN NO EVENT WILL MagicHoop.com, OR ANY PERSON OR ENTITY INVOLVED IN USE OF A MagicHoop.com order, BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE MagicHoop.com. SUBSCRIBER HEREBY ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT ON MagicHoop.com.
(E) IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER, MagicHoop.com, NOR ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS SHALL BE LIABLE REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED MagicHoop.com, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE USER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES. NEITHER, MagicHoop.com, NOR ITS AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS WARRANT OR GUARANTEE THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF THIS INFORMATION. ADDITIONALLY, THERE ARE NO WARRANTIES AS TO THE RESULTS OBTAINED FROM THE USE OF THE INFORMATION.
7. Monitoring.
MagicHoop.com shall have the right, but not the obligation, to monitor the content of MagicHoop.com, to determine compliance with this Agreement and any operating rules established by MagicHoop.com and to satisfy any law, regulation or authorized government request. MagicHoop.com shall have the right in its sole discretion to edit, refuse to post or remove any material submitted to or posted on MagicHoop.com. Without limiting the foregoing, MagicHoop.com shall have the right to remove any material that MagicHoop.com, in its sole discretion, finds to be in violation of the provisions hereof or otherwise objectionable.
8. Indemnification.
Subscriber agrees to defend, indemnify and hold harmless MagicHoop.com, its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys fees, arising out of the use of MagicHoop.com by Subscriber or Subscribers Account.
9. Termination.
MagicHoop.com may terminate this Agreement at any time. Without limiting the foregoing, MagicHoop.com shall have the right to immediately terminate Subscribers Account in the event of any conduct by Subscriber which MagicHoop.com, in its sole discretion, considers to be unacceptable, or in the event of any breach by Subscriber of this Agreement.
10. Trademarks.
MagicHoop.com logos are trademarks of MagicHoop.com and any of its subsidiaries. All rights reserved. All other trademarks appearing on MagicHoop.com are the property of their respective owners.
11. Third Parties/Certified Merchants.
MagicHoop.com is not the seller in the actual transaction between Third Parties/Certified Merchants and buyers and is not the agent of either for any purpose, MagicHoop.com does not have the duty to resolve any disputes between participants related to or arising out of any such transaction. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including information providers, Subscribers or any other user of MagicHoop.com, are those of the respective author(s) or distributor(s) and not of MagicHoop.com. Neither MagicHoop.com nor any third-party provider of information guarantees the accuracy, completeness, or usefulness of any content, nor its merchantability or fitness for any particular purpose. (Refer to Section 6 above for the complete provisions governing limitation of liabilities and disclaimers of warranty.)
In many instances, the content available through MagicHoop.com represents the opinions and judgments of the respective information provider, Subscriber, or other user not under contract with MagicHoop.com. MagicHoop.com neither endorses nor is responsible for the accuracy or reliability of any opinion, advice or statement made on MagicHoop.com by anyone other than authorized MagicHoop.com employee spokespersons while acting in their official capacities. Under no circumstances will MagicHoop.com be liable for any loss or damage caused by a Subscribers reliance on information obtained through MagicHoop.com. It is the responsibility of Subscriber to evaluate the accuracy, completeness or usefulness of any information, opinion, advice or other content available through MagicHoop.com. Please seek the advice of professionals, as appropriate, regarding the evaluation of any specific information, opinion, advice or other content.
MagicHoop.com Certified Merchants are MagicHoop.com approved third party merchants who sell products on the site. In this program, The Certified Merchants is the seller of the product. To ensure MagicHoop.com buyers the ability to shop in a private and secure environment, every Certified Merchant must go through a thorough application process including verification of bank and trade records before they are allowed to sell on the site. The Certified Merchants are established businesses, both large and small, whose performances are monitored to ensure that buyers receive the appropriate MagicHoop.com service levels. The Certified Merchants assume all responsibility for all aspects of their item listings, including product descriptions, identifications of quantities, pictures, and shipping. Although, MagicHoop.com does not own, warehouse, ship or otherwise manage these Certified Merchants, the merchants that do not meet MagicHoop.coms service standards can and will be removed from the site. All payment for items won is solely between the Certified Merchant and the customer. MagicHoop.com will provide assistance for all issues to ensure a positive MagicHoop.com experience.
12. Miscellaneous.
This Agreement and any operating rules for MagicHoop.com established by MagicHoop.com constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the State of California, without regard to its conflict of laws rules. 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. The section headings used herein are for convenience only and shall not be given any legal import.
13. Copyrights and Copyright Agent.
MagicHoop.com respects the rights of all copyright holders and in this regard, MagicHoop.com has adopted and implemented a policy that provides for the termination in appropriate circumstances of subscribers and account holders who infringe the rights of copyright holders. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide MagicHoop.coms Copyright Agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. ¤ 512
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
4. Information reasonably sufficient to permit us to contact the complaining party;
5. A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
14. Supplemental Terms
It is in the best interest of all bidders to print a copy or write down the listing number of each order. In the case your order was affected by a glitch, without the listing number there will be no way to investigate the situation. It is the sole responsibility of the user to maintain the order listing number or numbers.
Your Transactions and Obligations By entering into this Agreement and bidding on a product, the customer agrees to complete the transaction. In which case, the customer will be held accountable if they do not fulfill this obligation. If payment is not made, bidding privileges may be subject to suspension and MagicHoop.com maintains the right to cancel outgoing invoices at their own discretion. Reasons for such actions include but are not limited to multiple non-pays of orders won, unresolved chargeback issues, an undeliverable address, or the refusal to pay custom fees.
*MagicHoop.com reserves the right to demand payment if customer has more than 10 unpaid items in their account or if the total amount of orders won, exceeds $1000.00. To avoid this situation please pay on time. Thank you for cooperation.
California Residents
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §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." YOU, BEING AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS YOU MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. YOU ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, THIS AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO BY MagicHoop.com.
