1. ACCEPTANCE OF TERMS. DEFINITIONS
Your access and use of the Service constitutes your agreement to be bound by the Terms, which establishes a legally binding contractual relationship between you and the Company.
The Company reserves the right to make changes to or update the content of the website and its games or the format there of at any time and without any notice. We reserve the right to terminate or restrict access to the website for any reason whatsoever at its sole discretion.
You must be a parent, legal guardian, or an authorized school employee in compliance with FERPA or other applicable laws, to use the Service on behalf of a child. By providing your consent, you agree to be bound by these Terms in respect of the child's use of the Service.
The Terms contain important disclaimer (section 2), disclaimer of warranty (section 8) and limitation of liability (section 9) provisions, as well as provisions in accordance with which you waive your right to a jury trial, right to a court hearing and right to participate in a class action (arbitration and class action waiver). Unless you opt out within 30 days of first use of the Service as provided for in section 12, arbitration is the exclusive remedy for any and all disputes and is mandatory, except as specified below in section 12.
If you are a parent or guardian and you provide your consent to your child's registration with the Service, you agree to be bound by these terms in respect of their use of the Service. If you are a school official and provide your consent to a child's registration with the Service, you agree to be bound by these Terms in respect of their use of the Service, that you are authorized to do so, and that you are in compliance with the family educational rights and privacy act (FERPA) and any other applicable laws.
- "Account Owner" – is a parent, guardian or authorized school official who has created an account in the relevant App Store and registered a Profile (as defined below) on behalf of a child on the App.
- "Parent" – is an Account Owner that is a parent or legal guardian.
- "School Official" – is an Account Owner that is a teacher or other authorized school agent, according to authorization procedures within FERPA.
2. IMPORTANT DISCLAIMER
In addition to all other limitations and disclaimers in these terms, the company disclaims any liability for any losses that you may incur in connection with the content provided on the Service.
3. PROFILE REGISTRATION
3.1. In order to use certain features of the Service, you may be required to register your/your child's profile in the App ("Profile") and provide certain information about yourself or the child as prompted by the registration form.
3.2. If you register a Profile, you represent and warrant to the Company that: (i) all the registration information that you submit is truthful and accurate; (ii) you will maintain the accuracy of such information; and (iii) your registration of the Profile and use of the Service does not violate any applicable law or regulation or these Terms. Otherwise, the Service may not operate correctly, and we may not be able to contact you with important notifications.
3.3. All users who are minors in the jurisdiction in which they reside (generally, under the age of 16) must have the permission of, and be directly supervised by, their parent or guardian in order to use the Service. If you are a minor, you must ensure that your parent or guardian reads and accepts these Terms before you use the Service.
Account Owners may only register their own child(ren). Account Owners affirm that they, as parents or legal guardians, consent to the use of the Service by any child user associated with their account, and that they have read and accepted these Terms, are fully able and competent to enter into the Terms and the conditions, obligations, affirmations, representations, and warranties set forth therein. Account Owners agree to abide by and comply with these Terms.
3.4. The Company reserves the right to suspend or terminate the Profile, or your access to the Service, with or without notice to you, in the event that you breach these Terms.
3.5. You are responsible for maintaining the confidentiality of the Profile login information and are fully responsible for all actions taken in connection with the Profile. You agree immediately to notify the Company of any unauthorized use, or suspected unauthorized use of the Profile or any other breach of security. The Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3.6. By using the Service, you agree to receive certain communications, such as updates on the App or in-App notifications. You can opt out of non-essential communications by changing the notifications settings on your device.
4.1. You acknowledge that all the text, images, video, marks, logos, data, compilations (meaning collected, arranged and assembled data), software, materials and other content displayed on the Service or used by the Company to operate the Service (including the App and the Content and excluding any User Content, as defined below) belongs to the Company or to third parties.
4.2. The Company expressly reserves all rights, including all intellectual property rights, in all of the foregoing, and (except where expressly permitted by these Terms) any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other exploitation of them is strictly prohibited. The provision of the Service does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights.
4.4. You grant the Company a non-exclusive, worldwide, transferable, perpetual and irrevocable right to publish, distribute, publicly display and perform the User Content in connection with the Service.
4.5. Subject to these Terms, the Company grants you a non-transferable, non-exclusive, license (without the right to sublicense) to (i) use the Service solely for your personal, non-commercial purposes, and (ii) install and use the App, solely on your own handheld mobile device (e.g., iPhone, Android device, etc. as applicable) and solely for your personal, non-commercial purposes.
4.6. You agree, and represent and warrant, that your use of the Service, or any portion thereof, will be consistent with the foregoing license, covenants and restrictions and will neither infringe nor violate the rights of any other party or breach any contract or legal duty to any other parties. In addition, you agree that you will comply with all applicable laws, regulations and ordinances relating to the Service or your use of the Service, and that you will be solely responsible for your own individual violations of any such laws.
4.7. You are solely responsible for obtaining the equipment and telecommunication services necessary to access the Service, and all fees associated therewith (such as computing devices and Internet service provider and airtime charges).
4.8. We retain the right to implement any changes to the Service (whether to free or paid features) at any time, with or without notice. You acknowledge that various actions taken by the Company actions may impair or prevent you from accessing the Service at certain times and/or in certain ways, for limited periods or permanently, and agree that the Company bears 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 or services.
4.9. Your access to and use of the Service is at your own risk. The Company bears no responsibility for any harm to your computing system, loss of data, or other loss incurred by you or any third party, including, without limitation, any bodily harm, that results from your access to or use of the Service, or reliance on any information or advice.
4.10. The Company has no obligation to provide you with customer support of any kind, but it may, at its sole discretion, provide you with such support from time to time.
4.11 YOU WILL NOT ADD ANY SPECIAL CATEGORIES OF DATA, AND IF YOU DO ADD ANY SPECIAL CATEGORIES OF DATA, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE OBTAINED EXPLICIT CONSENT TO DO SO, IF AND AS REQUIRED UNDER THE APPLICABLE LAW AND THAT YOU SHALL BE SOLELY RESPONSIBLE AND LIABLE FOR ANY SUCH DATA, INCLUDING IN THE EVENT OF ANY DATA BREACH BY Magic Kids. FOR THE PURPOSES OF THIS PROVISION THE TERM "DATA" IS USED AS IS DEFINED IN THE GENERAL DATA PROTECTION REGULATION (THE GDPR, OR REGULATION 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, DATED 27 APRIL 2016, ON THE PROTECTION OF NATURAL PERSONS WITH REGARD TO THE PROCESSING OF PERSONAL DATA AND ON THE FREE MOVEMENT OF SUCH DATA, AND REPEALING DIRECTIVE 95/46/EC).
5. APP STORES, THIRD PARTY ADS, OTHER USERS
5.1. You acknowledge and agree that the availability of the App is dependent on the third party from which you received the App, e.g., the Apple iTunes App Store, and/or any other app store (collectively, "App Stores" and each, an "App Store").
5.3. The Service may (but will not necessarily) contain links to third party websites or resources and advertisements for third parties (collectively, "Third Party Ads"). Such Third Party Ads are not under the control of the Company and the Company is not responsible for any Third Party Ads. The Company provides these Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Ads. Advertisements and other information provided by Third Party Sites Ads may not be wholly accurate. You accept sole responsibility for and assume all risk arising from your use of any such websites or resources. When you follow a link to a third party site, you agree to be governed by the applicable service provider's terms and policies, including its privacy and data gathering policies. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party. Any transactions and other dealings that you enter into as a result of viewing Third Party Ads that are found on or through the App, including in relation to payment for and delivery of related goods or services, are solely between you and such merchant or advertiser.
5.4. Each user of the Service is solely responsible for any and all his or her User Content. Because we do not control the User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, nor do we assume responsibility for any User Content. Your interactions with other Service users are solely between you and such user. You agree that the Company will not be responsible for any loss or damage incurred as the result of any such interactions, and that the Company will not become involved in any dispute between you and any other user of the Service.
5.5. You hereby release us, our officers, employees, agents and successors from claims, demands any and all losses, damages, rights, claims, and actions of any kind including actions for personal injuries, death, and property damage that is related to or arises directly or indirectly from any interactions with or conduct of App Stores, other users of the Service, or persons placing Third Party Ads.
6. SUBSCRIPTION FEES AND PAYMENT
6.1. The App is free to download. However, certain features of the Service are offered on a subscription basis for a fee. You agree to pay the applicable fees (and any related taxes) to the App Store as they become due.
6.2. To the maximum extent permitted by applicable laws, we may change subscription fees at any time. We will give you reasonable notice of any such pricing changes by posting the new prices on or through the App and/or by sending you an email notification. If you do not wish to pay the new fees, you can cancel the applicable subscription prior to the change going into effect.
6.3. You authorize the App Stores to charge the applicable fees to the payment card that you submit.
6.4. By signing up for certain subscriptions, you agree that your subscription may be automatically renewed. Unless you cancel your subscription, you authorize the App Stores to charge you for the renewal term. The period of auto-renewal will be the same as your initial subscription period unless otherwise disclosed to you on the Service. The renewal rate will be no more than the rate for the subscription period immediately preceding the renewal, excluding any promotional and discount pricing, unless we notify you of a change in the rate prior to your auto-renewal. You must cancel your subscription in accordance with the cancellation procedures disclosed to you for the particular subscription. We will not refund fees that may have accrued to your account and will not prorate fees for a cancelled subscription.
6.5. We may offer a free trial subscription for the Service. Free trial provides you access to the Service for a limited period of time, in accordance with the terms specified when you sign up for the offer. Unless you cancel before the end of the free trial, or unless otherwise stated, your access to the Service will automatically continue and you will be billed the applicable fees for the Service. We may send you a reminder when your free trial is about to end, but we do not guarantee that we will send any such notification. It is ultimately your responsibility to know when the free trial will end. We reserve the right, in our absolute discretion, to modify or terminate any free trial offer, your access to the Service during the free trial, or any of these terms without notice and with no liability. We reserve the right to limit your ability to take advantage of multiple free trials.
6.6. The Service and your rights to use it expire at the end of the paid period of your subscription. If you do not pay the fees or charges due, we may make reasonable efforts to notify you and resolve the issue; however, we reserve the right to disable or terminate your access to the Service, and may do so without notice.
6.7. Subscriptions purchased via an App Store are subject to such App Store's refund policies. We are therefore unable to grant refunds, and if you believe that you are entitled to a refund you should contact the App Store's support service.
7. USER REPRESENTATIONS AND RESTRICTIONS
7.1. By using the Service, you represent and warrant that:
7.1.1. You have legal capacity and you agree to comply with these Terms, and, particularly, with clauses 1.3 and 1.7 hereof;
7.1.2. You are not under the age of 16;
7.1.3. You will not access the Service through automated or non-human means, whether through a bot, script or otherwise;
7.1.4. You will not use the Service for any illegal or unauthorized purpose;
7.1.5. 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;
7.1.6. You are not listed on any U.S. government list of prohibited or restricted parties;
7.1.7. You will be responsible for any use of your credit card or other payment instrument (e.g. PayPal);
7.1.8. You are not a convicted sex offender; and
7.1.9. Your use of the Service will not violate any applicable law or regulation.
7.2. If you provide any information that is untrue, inaccurate, out of date or incomplete, we have the right to refuse any and all current or future use of the Service (or any portion thereof).
7.3. You may not access or use the Service for any purpose other than that for which we make the Service available. The Service may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
7.4. As a user of the Service, you agree not to:
7.4.1. Systematically retrieve data or other content from the Service to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us;
7.4.2. Make any unauthorized use of the Service;
7.4.3. Make any modification, adaptation, improvement, enhancement, translation, or derivative work from the Service;
7.4.4. Use the Service for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended;
7.4.5. Make the Service available over a network or other environment permitting access or use by multiple devices or users at the same time;
7.4.6. Use the Service for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the Service;
7.4.7. Use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the Service;
7.4.8. Circumvent, disable, or otherwise interfere with security-related features of the Service;
7.4.9. Engage in unauthorized framing of or linking to the Service;
7.4.10. Interfere with, disrupt, or create an undue burden on the Service or the networks or services connected to the Service;
7.4.11. Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Service;
7.4.12. Attempt to bypass any measures of the Service designed to prevent or restrict access to the Service, or any portion of the Service;
7.4.13. Upload or distribute in any way files that contain viruses, worms, trojans, corrupted files, or any other similar software or programs that may damage the operation of another's computer;
7.4.14. Use, launch, develop, or distribute any automated system, including, without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Service, or use or launch any unauthorized script or other software;
7.4.15. Use the Service to send automated queries to any website or to send any unsolicited commercial e-mail;
7.4.16. Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Service;
7.4.17. Use the Service in a manner inconsistent with any applicable laws or regulations; or
7.4.18. Otherwise infringe these Terms.
8. DISCLAIMER OF WARRANTIES
The App, Content and other aspects of the Service are provided "as is" and "as available", and without representation or warranty of any kind, express or implied, including, but not limited to, implied warranties of title, non-infringement, integration, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed.
The Company and its affiliates, licensors and suppliers do not warrant that: (i) the Service, Content or other information will be timely, accurate, reliable or correct; (ii) the Service will be secure or available at any particular time or place; (iii) any defects or errors will be corrected; (iv) the Service will be free of viruses or other harmful components; or (iv) any specific result or outcome can be achieved.
9. Limitation of liability
9.1. In no event will we (and our affiliates) be liable to you or any third party for any lost profit or any indirect, consequential, exemplary, incidental, special or punitive damages arising from these terms or your use of, or inability to use, the Service (including the App or Content), or third party ads, even if we have been advised of the possibility of such damages. Access to, and use of, the Service (including the App, Content and User Content), and Third Party Ads are at your own discretion and risk, and you are solely responsible for any damage to your computing system or loss of data resulting therefrom.
9.2. Notwithstanding anything to the contrary contained herein, you agree that the aggregate liability of the company to you for any and all claims arising from the use of the App, Content or Service is limited to the amounts you have paid to the company for access to and use of the Service. The limitations of damages set forth above are fundamental elements of the terms between the company and you.
9.3. Some jurisdictions do not allow the limitation or exclusion of liability for incidental of consequential damages, so the above limitation or exclusion may not apply to you and you may also have other legal rights that vary from jurisdiction to jurisdiction.
You agree to indemnify and hold harmless the Company, its successors, subsidiaries, affiliates or related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of such entities or persons from and against any claim action or proceeding made by any third party due to or arising out of (i) your use of the Service, (ii) your User Content, or (iii) your violation of these Terms, and to indemnify the Company for any costs and attorneys' fees it incurs in relation to such claim action or proceeding.
The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of such claim action or proceeding. You agree not to settle any matter without the prior written consent of the Company. The Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
11. INTERNATIONAL USE
The Company makes no representation that the Service is accessible, appropriate or legally available for use in your jurisdiction, you may not access and use the Service from territories where doing so would be illegal. You access the Service at your own initiative and are responsible for compliance with local laws.
12. MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
12.1. Please read this arbitration provision carefully in order to understand your rights. Except where prohibited by law, you agree that any claim that you may have in the future must be resolved through final and binding confidential arbitration. You hereby acknowledge and agree that waive the right to a trial by jury. The rights that you would have if you went to court, such as discovery or the right to appeal, may be more limited or may not exist.
12.2. You agree that you may only bring a claim in your individual capacity and not as a plaintiff (lead or otherwise) or class member in any purported class or representative proceeding. You further agree that the arbitrator may not consolidate proceedings or claims or otherwise preside over any form of a representative or class proceeding.
12.4. Arbitration is a more informal way to settle disputes than a lawsuit in court. A neutral arbitrator instead of a judge or jury is used in arbitration, which allows for more limited discovery than in court, and is subject to very limited review by courts. The arbitrator has the same powers as a court to award damages and relief.
12.5. A party which intends to seek arbitration must first send to the other a written notice of intent to arbitrate (a "Notice") by an international courier with a tracking mechanism, or, in the absence of a mailing address provided by you to us, via any other method available to us, including via e-mail. The Notice to the Company must be addressed to: 101 Townsquare, Ix-Xatt ta' Qui-si-Sana, Sliema SLM3112, Malta (as applicable, the "Arbitration Notice Address"). The Notice shall (i) describe the basis and nature of the claim or dispute; and (ii) set the specific relief sought (the "Demand"). If you and the Company do not reach an agreement to resolve the claim within 30 days after the Notice is received, then you or we may commence an arbitration proceeding as set forth below or file an individual claim in small claims court.
12.6. These Terms shall be governed by the laws of Malta. Any legal or equitable action of whatever nature by or against Magic Kids arising out of or related in any respect to these Terms shall be brought only before the jurisdiction of the competent courts of Malta, pursuant to any applicable Israeli laws pertaining to subject matter jurisdiction. In any action to enforce these Terms, the prevailing party will be entitled to costs and attorneys' fees. Any cause of action against Magic Kids must be brought within one (1) year of the date on which such cause of action arose. In the event that any provision of these Terms is held to be unenforceable, such provision shall be replaced with an enforceable provision which most closely achieves the effect of the original provision, and the remaining terms of these Terms shall remain in full force and effect.
Nothing in these Terms creates any agency, employment, joint venture, or partnership relationship between you and Magic Kids or enables you to act on behalf of Magic Kids. Except as may be expressly stated in these Terms, these Terms constitute the entire agreement between us and you pertaining to the subject matter hereof, and any and all other agreements existing between us relating thereto are hereby canceled. You shall not be entitled to assign any of your rights hereunder to any third party. Magic Kids may assign any and all rights hereunder to any third party.
12.7. The arbitration shall be conducted exclusively in English. You and the Company agree to comply with the following rules, which are intended to streamline the arbitration process and reduce the costs and burdens on the parties: (i) the arbitration will be conducted online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award the arbitrator renders may be entered in any court of competent jurisdiction.
12.8. To the fullest extent permitted under law, you and the Сompany agree that you and the Company may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class, representative, or consolidated proceeding. Further, you agree that the arbitrator may not consolidate proceedings of more than one person's claims, and may not otherwise preside over any form of representative or class proceeding, and that if this specific provision is found to be unenforceable, then the entirety of this mandatory arbitration section will be null and void.
12.10. The above stated provisions of this Section 12 shall not apply to any claim in which either party seeks equitable relief to protect such party's copyrights, trademarks, patents, or other intellectual property. For the avoidance of doubt, you agree that, in the event that the Company or a third party breaches these Terms, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against us, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in these Terms.
12.11. All claims you bring against the Company must be resolved in accordance with this Section. All claims filed or brought contrary to this Section shall be considered improperly filed. Should you file a claim contrary to this Section, the Company may recover attorneys' fees and reimbursement of its costs, provided that the Company has notified you in writing of the improperly filed claim, and you fail to promptly withdraw such claim.
12.12. In the event that we make any material change to this arbitration provision (other than a change to our Arbitration Notice Address), you may reject any such change by sending us written notice to our Arbitration Notice Address within thirty (30) days of the change, in which case your Account and your license to use the Service will terminate immediately, and this Section, as in effect immediately prior to the amendments you reject, will survive the termination of these Terms.
12.13. You understand that, without this waiver, you would have had a right to litigate through a court, to have a judge or jury decide your case, and to be party to a class or representative action. However, you agree to waive such rights and have any claims decided individually and only through binding, final, and confidential arbitration.
12.14. You have the right to opt out of this arbitration provision within thirty (30) days from the date that you first use, or attempt to use, the Service by writing to email@example.com or to the arbitration notice address. For your opt-out to be effective, you must, within thirty (30) days, submit a signed written notice opting out and containing enough details about you for us to be able to identify you. If more than thirty (30) days have passed, you are not eligible to opt out of this provision and you must pursue your claim through binding arbitration as set forth in this agreement.
13. GOVERNING LAW
13.1. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action will be subject to the exclusive jurisdiction of Malta.
14. MISCELLANEOUS PROVISIONS
14.1. No delay or omission by us in exercising any of our rights occurring upon any noncompliance or default by you with respect to these Terms will impair any such right or be construed to be a waiver thereof, and a waiver by the Company of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained.
14.2. Subject to Section 12, if any provision of these Terms is found to be invalid or unenforceable, then these Terms will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law.
14.3. Except as otherwise expressly provided herein, these Terms set forth the entire agreement between you and the Company regarding its subject matter, and supersede all prior promises, agreements or representations, whether written or oral, regarding such subject matter.
14.4. The Company may transfer or assign any and all of its rights and obligations under these Terms to any other person, by any way, including by novation, and by accepting these Terms you consent to any such assignment and transfer by the Company. You confirm that the placing on the Service of a version of these Terms which indicates another person as a party to the Terms shall constitute valid notice to you of the transfer of Company's rights and obligations under the Agreement (unless otherwise expressly indicated).
14.5. All information communicated on the Service is considered an electronic communication. When you communicate with us through or on the Service or via other forms of electronic media, such as e-mail, you are communicating with us electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.
You further acknowledge and agree that by clicking on a button labeled "SUBMIT", "CONTINUE", "CONTINUE", "REGISTER", "I AGREE" or similar links or buttons, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by these Terms.
YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS, INITIATED OR COMPLETED THROUGH THE SERVICE.
14.6. In no event shall the Company be liable for any failure to comply with these Terms to the extent that such failure arises from factors outside the Company's reasonable control.
If you want to send any notice under these Terms or have any questions regarding the Service, you may contact us at: firstname.lastname@example.org.
I HAVE READ THESE TERMS AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.