Acceptance of Terms
Magiwow, LLC (d/b/a SimpleFeedback.com and also referred to herein as the "Company") offers online feedback management services for web-based products, services and mobile applications (the "Services") according to the terms herein and any and all other terms, conditions, rules, policies or procedures published on this Site from time to time and related to the use of the Site or the Services (collectively, the "Terms of Service" or the "Agreement"). By accessing or using the Services or the Site, You acknowledge that You have read and understood this Agreement and You agree to be bound by this Agreement. If You are accessing or using the Services or this Site on behalf of a company or other legal entity or party, You represent that You have the authority to bind such company, entity or party, and its respective affiliates, to this Agreement, in which case the terms "You", "Your", "Subscriber" and "Submitter" as used herein shall refer to such company, entity party or affiliate. If You do not have such authority, or if you do not agree with this Agreement, do not access or otherwise use this Site or the Services.
The Company reserves the right to modify these terms without notice. The use of the Site or the Services, as either a submitter of feedback ("Submitter") or a Subscriber of the Services ("Subscriber"), constitutes your acceptance of the Terms of Service and constitutes a binding, legal agreement between You and the Company. If You violate any term of this Agreement, the Company may block, modify or terminate your access to the Site and Services and seek any and all legal remedies against You.
For purposes of this Agreement, "Content" shall mean any information, data, text, software, music, sound, photographs, images, video, feedback responses, messages or other materials communicated, provided or transmitted by a Submitter or Subscriber through the Site or the Services.
Questions about the Terms of Service may be sent to firstname.lastname@example.org.
- The Company can refuse registration of a new Subscription (as defined below) or cancel and terminate any existing Subscription in its sole discretion at any time, with or without reason or cause.
- You are responsible for using the Services in a private and secure manner. The Company is not liable for any damage or loss due to unauthorized account access resulting from your actions, such as sharing your account password or not logging out of the Site or the Services.
- You may not register accounts with unauthorized automated methods ("bots").
- You may not use the Site or Services for any illegal activity or to violate laws in any applicable jurisdiction.
- You may not use the Site or Services to distribute unsolicited email ("spam") or malicious content such as viruses or worms.
- You may not exploit the Site or Services to access unauthorized information.
- You acknowledge and agree that the Site and the Services are provided "as is," "where is," "as available," and "with all faults," and that the Company has no responsibility or liability for the loss or deletion of, or failure to receive, process or store Content.
- Any failure of the Company to enforce or exercise a right provided in these terms is not a waiver of that right.
- Should any provision of these terms be found invalid or unenforceable, the remaining terms shall still apply.
- This Terms of Service constitutes the entire agreement between you and the Company and supersedes any and all previous agreements, written or oral, between you and the Company, including previous versions of the Terms of Service.
Payment, Refunds, Upgrading and Downgrading Terms
- Subscribers need to provide a valid credit card for paying the changes and fees associated with a subscription to the Services as a Subscriber (the "Subscription"). Each Subscriber hereby warrants that the credit card information provided to the Company is corrected and the Subscriber shall promptly notify the Company of any changes to such credit card information. The Subscriber acknowledges that if its credit card payment cannot be processed for any reason, the Company may suspend or cancel the Subscriber's Subscription.
- The Services for a Subscriber are billed in advance on a continuous monthly basis and is non-refundable. The first billing will occur 15 days after the date the Subscription is established. The monthly billings will continue the Subscription is cancelled. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
- All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
- For any upgrade or downgrade in plan level, your credit card that you provided will automatically be charged the new rate on your next billing cycle. You may also be charged a pro-rated amount for the change of service in the current billing period.
- Downgrading your Services may cause the loss of features or capacity of your Subscription. The Company is not liable or otherwise responsible for any liability or loss resulting from the downgrading.
Cancellation and Termination
- You are responsible for properly canceling your Subscription. You may cancel your subscription at any time.
- Upon cancellation, any Content associated with the Subscription will not be recoverable. You are responsible for exporting your data prior to cancellation and termination.
- Please be advised that the cancellation and termination of a Subscription does not automatically result in the deletion and destruction of the feedback and other Content associated with your Subscription. If You wish to permanently delete such feedback and Content, please contact us at email@example.com.
- The Company reserves the right to suspend, cancel or terminate your Subscription at any time for any reason, and is not liable for any damage or loss to You resulting from such suspension, cancellation or termination.
Modification to Service and Fees
- The Company reserves the right to modify, suspend, or discontinue the Services for any reason, with or without notice.
- The Company reserves the right to modify any prices for the Services (such as the subscription fees). The Company agrees to provide 30 days notice of any price change, which shall be posted on the Site or emailed to all active Subscribers impacted by the price changes.
- The Company reserves the right to modify any functionality, performance or operation of the Services without notice.
Enterprise Subscription Agreements
Enterprise Subscriptions Agreements ("ESA") are available to Subscribers who need features or services not available in our standard monthly plans. The ESA pricing schedule allows customers to choose the combination of features and feedback volumes that are optimal for their unique business circumstances. The minimum subscription period for an ESA is twelve months, billable in advance. Similar to monthly subscription plans, there are no refunds or credits for downgrading to a lesser plan or for terminating your account before the end of the subscription period.
General Conditions/ Access and Use of the Service
Use of Service
- Subject to the terms and conditions of this Terms of Service, You may access and use the Services only for your internal business purposes as described by the Agreement. You shall not:
- license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than as expressly permitted by this Terms of Service
- use the Services to process Content on behalf of any third party, or
- use the Services in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Services and its components.
- Subject only to the limited right to access and use the Services expressly granted to You under this Terms of Service, all rights, title and interest in and to the Service and its components will remain with and belong exclusively to the Company.
- You shall not modify, adapt, reprogram or hack the Services to falsely imply any sponsorship or association with SimpleFeedback.com or the Company, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks.
- The Company owns the intellectual property rights arising from or associated with the Services or Site, including but not limited to the design, artwork, functionality, documentation and code libraries. You may not copy, modify, or reverse engineer any part of the Services or Site.
- You are responsible for all information, data, text, messages or other materials that you post or otherwise transmit via the Site or the Services. You represent and warrant to the Company that the posting or transmitting of such information, data, text, messages or other materials via the Site or the Services shall not be in violation of, or breach any obligation to, any third party or the rights of a third party.
- You are responsible for maintaining the confidentiality of your login and account and are fully responsible for any and all activities that occur under your login or account.
- You agree and acknowledge that your login may only be used by one (1) person - a single login shared by multiple people is not permitted. You may create separate logins for as many people as your plan allows.
- The Company reserves the right to access any or all your accounts associated with the Services in order to respond to your requests for technical support. We shall maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of your Content. We will not disclose your Content to any third party who is not involved with the Company's technical support, except if required by law or if permitted by you.
- You understand that the technical processing and transmission of the Services, including your Content, may be transferred unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to the Company's third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. By using the Site and the Services, you consent to such processing and transmission.
- The Company will use reasonable efforts to publish on the site or notify you of any planned downtime of the Service.
Submissions and Information
- A user of any of the Services of SimpleFeedback.com enables them to provide feedback submissions to our Subscribers.
- Any submission that may be provided through the feedback service by Submitters and/or received from other commercial systems, which the Subscriber subscribes to, shall be deemed the Subscriber's property, subject to the Company's use rights as set forth in this Terms of Service.
- The Company will use reasonable measures to ensure that the information collected by the Company is only accessible to the Company and its affiliates and is not disclosed to any non-affiliated third party. The Company may aggregate and analyze data, information and statistics about the Company's customers, sales, traffic patterns and related Site information and has the right and full authority to use such information gathered by it for any purpose it deems appropriate.
- By submitting feedback, the end user consents to the use of the information by the Subscriber as long as such use does not violate the Terms of Service or applicable laws.
- Submitters are advised that any and feedback or Consent submitted via the Site or Services to a Subscriber, including such users contact or other information, is provided for the purpose of enabling the Subscriber to communicate with the user in respect to the feedback and Content submitted. Under the terms of this Agreement, Subscribers are prohibited from providing such Submitter information to other parties for advertising, soliciting or marketing other products or services, except where the user 'opts-in' to receive such communications. If the Company determines, in its sole discretion, that a Subscriber engages in such prohibited activity, the Company may immediately terminate such Subscriber's right to receive Services and take appropriate legal action. SUBMITTER HEREBY ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO THE SUBMITTER FOR ANY DAMAGE OR LOSSES SUFFERED BY THE SUBMITTER ARISING FROM (i) A BREACH OF VIOLATION OF THIS TERMS OF SERVICE BY A SUBSCRIBER OR (ii) THE SUBSEQUENT USE, TRANSFER, SALE OR DISSEMINATION BY A SUBSCRIBER OF INFORMATION PROVIDED BY THE SUBMITTER THROUGH THE SITE OR THE SERVICES.
- Submitters are hereby advised that the Site and Services are made available to the Submitter for the sole purpose of providing feedback to the Subscribers. Therefore, notice is hereby given to all Submitters that the submission of any feedback that (i) is fictional, misleading or false or (ii) interferes or disrupt the business and operations of a Subscriber, the Company, the Site or the Services is strictly forbidden. The Company reserves right to use all legal and other remedies available to it under applicable law in order to limit and/or prevent any such improper submissions.
- You acknowledge and agree that the Company does not control any Content originating from a Submitter or Subscriber and does not guarantee the accuracy, integrity or quality of such Content. Notwithstanding the foregoing, the Company may review all Content and may block, modify, terminate access to, or remove any such Content that the Company considers, in its sole discretion, does not comply with any of the requirements of this Agreement but the Company is not obligated to do so.
- The Company reserves the right to purge Content from its databases at any time and from time to time without notice. You acknowledge and agree that You are solely responsible for backing up any Content provided to the Site or the Services by a Submitter or received by a Subscriber through the use of the Site or the Services. The Company shall not be liable for any purging, deletion, or failure to retain any such Content.
SimpleFeedback.com may provide links to other sites ("Link Sites"). The Company is not responsible for the content on the Link Sites and is not responsible for the accuracy of the information and intellectual property notices therein.
DISCLAIMER OF WARRANTIES
THE SERVICES, THE SITE AND ALL CONTENT, DATA AND ALL SERVER AND NETWORK COMPONENTS RELATED TO THE SERVICES AND THE AITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY LAW. MAGIWOW, LLC EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT IN CONNECTION WITH THE SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT MAGIWOW, LLC DOES NOT WARRANT THAT THE SERVICES OR SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE.
YOU ACKNOWLEDGE AND AGREE THAT MAGIWOW, LLC IS NOT RESPONSIBLE FOR EVALUATING THE ACCURACY, RELIABILITY, COMPLETENESS OR USEFULNESS OF ANY FEEDBACK, INFORMATION OR OTHER CONTENT OBTAINED THROUGH THE USE OF THE SITE OR SERVICES. EACH SUBSCRIBER ASSUMES ALL RISK AND RESPONSIBILITY THAT MAY RESULT FROM SUCH SUBSCRIBER'S USE OF FEEDBACK, INFORMATION OR OTHER CONTENT PROVIDED TO IT BY MAGIWOW, LLC, THE SITE OR THE SERVICES AND EACH SUBMITTER ASSUMES ALL RISK AND RESPONSIBILITY THAT MAY RESULT BY PROVIDING FEEDBACK, INFORMATION OR OTHER CONTENT TO A SUBSCRIBER THROUGH THE USE OF THE SITE OR THE SERVICES.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL MAGIWOW, LLC BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION. IN ADDITION, MAGIWOW, LLC SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE MONTHLY SERVICE FEE PAID OR PAYABLE BY YOU FOR THE ONE MONTH PRECEDING THE TIME OF ANY CLAIM FOR MONETARY DAMAGES OR ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
You agree to indemnify and hold harmless Magiwow, LLC and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Site or Services, any Content provided by you through the Site or the Servces, the use of any Content obtained from the Site, the Services or Magiwow, LLC, your violation of this Agreement, or your violation or breach of any rights or obligations to another person or entity.<
Intellectual Property Rights
The Site and the Services and all information and screens appearing on this Site, including source code and libraries for websites and mobile applications, documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Magiwow, LLC Copyright © 2010 or its third party licensors. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license. Magiwow, LLC reserves all rights in the Site and the Services that are not expressly granted. SimpleFeedback is a trademark of Magiwow, LLC in the United States. Other trademarks, names, and logos on this Site are the property of their respective owners. Nothing in this Agreement shall be deemed to assign or transfer to User any rights to any such intellectual property. User further acknowledges and agrees that Content made available to User through the Services may be subject to the intellectual property rights of third parties.
Magiwow, LLC may assign or transfer this Terms of Service, in whole or in part, without restriction.
Compliance With Laws and Policies
You are responsible for complying with any and all applicable laws, rules, or regulations including but not limited to all applicable U.S. Federal, State, local and international laws, including the CAN-SPAM Act of 2003, and all other laws related to unsolicited commercial email messages, defamation, privacy, obscenity, intellectual property or child protective email address registries. Without the prior written consent of Magiwow, LLC, You shall not use the Site or the Services to send feedback requests or other materials to minor that would subject Magiwow, LLC the Children's Online Privacy and Protection Act.
You shall not upload, post, email, distribute, communicate, transmit or otherwise make available any Content: (i) that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, vulgar, obscene, offensive, indecent, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, (ii) that infringes any patent, trademark, trade secret, copyright, or other intellectual property right of any party, (iii) that You do not have the right to make available by reason of any law or contractual or fiduciary relationship (including inside information, and proprietary or confidential information obtained or disclosed in connection with an employment relationship or pursuant to a confidentiality agreement), or (iv) that comprises or includes any "junk mail", "spam", "chain letters", "pyramid schemes", or any similar form of solicitation.
The Terms of Service shall be governed by the laws of the State of California without regard to the principles of conflicts of law. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Service.
Survival of Certain Terms
The Sections identified as "Cancellation and Termination", "Disclaimer of Warranties", "Indemnity", "Intellectual Property Rights", "Governing Law" and "Survival of Certain Terms" shall survive the cancellation and termination of this Agreement. Furthermore, subsection (4) of "Submissions and Information" shall also survive the cancellation and termination of this Agreement.