MagicPin®

Terms of Use
Last modified July 20, 2022

These Terms of Use (the “Terms”) constitute a binding agreement between you and S&P Holbrook LLC dba MagicPin® (“MagicPin®,” “we,” or “us”) with respect to your access to or use of the Service (as defined herein). The Service is offered subject to your acceptance, without modification, of all terms and conditions set forth herein. 

PLEASE READ THESE TERMS CAREFULLY. BY CLICKING “I ACCEPT” OR BY ACCESSING OR USING THE SERVICE IN ANY MANNER, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS AND BY SUCH OTHER TERMS, CONDITIONS, POLICIES, AND DOCUMENTS THAT MAY BE INCORPORATED HEREIN BY REFERENCE, INCLUDING, WITHOUT LIMITATION, THE MAGICPIN® PRIVACY POLICY (COLLECTIVELY, THE “AGREEMENT”); (B) AFFIRM THAT YOU ARE AT LEAST 18 YEARS OF AGE (OR HAVE REACHED THE AGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE); AND (C) IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, REPRESENT AND WARRANT THAT YOU HAVE THE ORGANIZATIONAL AND LEGAL AUTHORITY TO ACCEPT THESE TERMS ON SUCH COMPANY’S OR OTHER ORGANIZATION’S BEHALF AND TO BIND SUCH COMPANY OR ORGANIZATION. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE. 

THESE TERMS MAY REQUIRE THE USE OF BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY TRIALS OR CLASS ACTIONS, IN ACCORDANCE WITH THE TERMS OF SECTIONS 25(c) (GOVERNING LAW; DISPUTE RESOLUTION) AND (d) (CLASS ACTION AND JURY WAIVER) BELOW. 

MAGICPIN® MAY REFUSE ACCESS TO OR USE OF THE SERVICE FOR NONCOMPLIANCE WITH ANY PART OF THIS AGREEMENT. THIS AGREEMENT IS VOID WHERE PROHIBITED BY LAW, AND ANY RIGHTS TO ACCESS OR USE THE SERVICE ARE REVOKED IN SUCH JURISDICTIONS.

“You” as used herein means the natural person or entity that has agreed to be bound by this Agreement, including, without limitation and as dictated by the circumstances, (i) in the capacity of a transferor of Pins (as defined below), either via sale or trade (a “Pin Transferor”), and (ii) in the capacity of a transferee of Pins, either via sale or trade (a “Pin Transferee”).  

1. THE SERVICE. MagicPin® operates an online service through its mobile software application known as “MagicPin®” (the “App”) and through its website with a homepage at https://www.magicpinapp.com/, including such subdomains and other websites as MagicPin® may designate from time to time (the “Site”), including all features, content, tools, applications, application program interfaces, widgets and other tools and services included on the App or Site (collectively, the “Service”), which Service allows users to search for, offer, buy, sell, and trade tradable Disney pins (“Pins”).  Pins may include cloisonné, semi- cloisonné, or hard-enamel metal Disney pins, or acceptable Disney operating participant pins, that represent a specific Disney event, place or location, character or icon.   




2. CHANGES TO THE AGREEMENT.  MagicPin® reserves the right to modify or change this Agreement and its terms, as well as any fees and other amounts charged for the Service, at any time and in its sole discretion. Any modifications or changes will be effective immediately upon posting on the App and Site, unless otherwise specified in the updated Agreement. You waive any right you may have to receive specific notice of any modifications or changes, except as otherwise required by law. Your continued access to and use of the App, Site, or Service confirms your acceptance of this Agreement and any changes or modifications made to the Agreement.  You should review these Terms and the Privacy Policy frequently and ensure you understand all terms, conditions, and policies applicable to your access to and use of the App, Site, and Service.




3. ACCESS TO THE SERVICE.  Subject to and conditioned upon your compliance with the terms and conditions of this Agreement, MagicPin® hereby grants to you a personal, revocable, limited, non-transferable, non-exclusive right to use the features and functionality of the Service to download the App onto your mobile device and use the App solely for your personal, non-commercial use. MagicPin® may suspend or terminate your access to the Service or any component thereof at any time and for any reason, including if MagicPin® determines you have violated any term or condition of this Agreement. We may modify, terminate, or replace the App, Site, and/or Service from time to time in our sole discretion and without prior notice.




4. USER ACCOUNTS.  In order to access and use the Service or certain features thereof, you will be required to establish a MagicPin® profile and user account (a “User Account”). You must provide true, accurate, current, and complete information as prompted by the applicable registration form, and you are responsible for keeping such information up to date. You are responsible and liable for all activities conducted through your User Account, regardless of who conducts those activities. You are responsible for maintaining the confidentiality of any user IDs, passwords and other credentials associated with your User Account, and shall immediately notify MagicPin® of any actual or suspected unauthorized access to or use of your User Account or any associated user IDs, passwords, or other credentials. You will cooperate fully with MagicPin® and take all actions that MagicPin® reasonably deems necessary to maintain or enhance the security of the Service or MagicPin®’s computing systems and networks and your access to the Service. MagicPin® is not and shall not be deemed liable for any loss or damage to you arising from your failure to comply with this Section 4. 




5. YOUR CONTENT.  
   1. User Content.  As between you and MagicPin®, you are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all information, data, materials, trademarks, tradenames, images, logos, and other content (including, without limitation, User Messaging (as defined below)) that you upload, input, or post to or in connection with the Service (“User Content”). Without limiting the generality of the foregoing, you shall not upload, input or post any User Content or other information, materials or content that (i) infringes the intellectual property rights, rights of privacy or publicity, or other proprietary rights of any third party, (ii) is inaccurate, incomplete, or incorrect, or that otherwise misrepresents or misidentifies any Pin, (iii) violates any applicable law, (iv) is, or is likely to be considered, immoral, libelous, tortuous, defamatory, threatening, vulgar, or obscene or harmful to minors, or (v) contains any malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
   2. License to User Content. You hereby grant to MagicPin® a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid-up, and fully sublicensable right (including any moral rights) and license to use, store, copy, distribute, publicly perform, communicate to the public, host, stream, publicly display, modify, and create derivative works of any User Content for any and all MagicPin® business purposes, including to operate the Service and to make the Service available to MagicPin® users.  You represent and warrant to MagicPin® that you have all rights necessary to grant the rights and licenses granted to MagicPin® under these Terms.
   3. MagicPin® Obligations.  You acknowledge and agree that MagicPin® does not, nor is it obligated to, monitor or police any communications or data, information, materials, or content (including User Content, Participant Content or User Messaging (as defined below)) transmitted through or posted to the App, Site, or Service, and MagicPin® will not be responsible for such data, information, materials, or content (including User Content, Participant Content, or User Messaging). Notwithstanding the foregoing, however, MagicPin® may, at its option and in its sole discretion, monitor and review or remove or delete from the App, Site, or Service any data, information, materials, or content (including any Client Content, Participant Content, or User Messaging) that MagicPin® determines violates the terms of this Agreement.




6. CONTENT FROM OTHER USERS. The Service contains content provided by other MagicPin® users (“Participant Content”). MagicPin® is not responsible for and does not control Participant Content, including, without limitation, the accuracy or completeness of the same. You acknowledge and agree that your use of Participant Content and your interaction with other users through the App, Site, and/or Service is at your own risk. YOU UNDERSTAND AND ACKNOWLEDGE THAT MAGICPIN® DOES NOT CONDUCT BACKGROUND CHECKS ON ITS USERS, NOR DOES MAGICPIN® ATTEMPT TO VERIFY THE ACCURACY OR COMPLETENESS OF ANY PARTICIPANT CONTENT. MAGICPIN® MAKES NO REPRESENTATIONS OR WARRANTIES AS TO, AND SHALL NOT BE LIABLE TO YOU FOR, THE CONDUCT OF ITS USERS OR FOR ANY PARTICIPANT CONTENT.  YOU AGREE AND ACKNOWLEDGE THAT MAGICPIN® WILL NOT BE RESPONSIBLE FOR ANY LIABILITY OR HARM THAT MY RESULT FROM YOUR INTERACTION WITH OTHER USERS.  You agree to, and hereby do, release MagicPin® and its successors from any claims, demands, losses, damages, rights, and actions of any kind, including personal injuries, death and property damage, that either directly or indirectly arise from your interactions with, or the conduct of, other users of the Service.  If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”




7. CONTENT TRANSMITTED THROUGH THE SERVICE.  The Service includes certain features that enable you to message other users and to display information about you and your Pins, including in real time (collectively, “User Messaging”). Any opinions, recommendations, offers, advice, or other information disseminated through User Messaging are those of the respective user, and MagicPin® shall have no responsibility or liability with respect to the same. All User Messaging is subject to the requirements and restrictions set forth in Section 5(a) hereof.  If you believe that another user has violated these Terms, including, without limitation, with respect to User Messaging or Participant Content, please promptly report the violation to MagicPin® using the reporting functionality available in the App. 




8. RESTRICTIONS.  You agree to use the Service solely for your personal, non-commercial use, in accordance with all documentation relating to the Service made available by MagicPin® (as the same may be updated from time to time), and in accordance with all applicable law. You shall not: (i) copy, reproduce, frame, mirror, modify, decompile, disassemble, create derivative works based on, or reverse engineer the Service or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) copy, modify, create derivative works of, retransmit, sell, license, exploit, reuse, repost, broadcast, or otherwise distribute any content made available to you through the Service, including without limitation, Participant Content; (iii) provide any third parties with access to any of the Service, or use any of the Service for time sharing or similar purposes for the benefit of any third party; (iv) sell, resell, rent or lease the Service; (v) remove any copyright or proprietary notices contained in the Service or any output thereof; (vi) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the Service; (vii) scrape or access the Service via any bot, web crawler or non-human user; (viii) access or use (or permit a third party to access or use) the Service for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Service or for any other benchmarking or competitive purposes; (ix) misrepresent your identity; (x) stalk or harass any other user of the Service; (xi) attempt to gain unauthorized access to the Service or any related systems, software or networks; (xii) access the Service in order to build a competitive product or service, or copy any features, functions or graphics of the Service; (xiii) use the Service to transmit viruses or malicious code; (xiv) manipulate the price of any Pin or interfere with any other user’s listing; or (xv) make any use of, or take any other action with respect to, the App, Site, or  Service or any component thereof in a manner that violates applicable law or any provision of this Agreement.  




9. APP STORE TERMS. With respect to any App accessed through or downloaded from the Apple App Store, Google Play Store, or any similar store or marketplace (each, an “App Store”), you agree to comply with all applicable terms and conditions of such App Store.




10. APP USE. When you access the Service through the App, you may incur a fee for data usage or other costs from your wireless provider. You agree that you are solely responsible for your use of the Service on your mobile device and adherence to your wireless provider’s terms and conditions.




11. TERM AND TERMINATION.  This Agreement shall remain in full force and effect while you use or have access to the Service. MagicPin® may terminate or restrict your access to any or all of the Service or your User Account, for any reason, and without warning, and MagicPin® reserves the right to discontinue or modify any aspect of the App, Site, or Service at any time. Any termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. Upon termination of these Terms, you will remain liable for any accrued charges and amounts due as of the date of such termination, and shall immediately cease to use the Service. 




12. SUBSCRIPTIONS AND IN-APP PURCHASES.
    1. Subscription Plans. Although MagicPin® currently offers limited access to the Service free of charge to users, certain enhanced access and Service features may be purchased by users on a paid subscription basis (“Premium Service”). Your purchase of a Premium Service will be subject to those terms disclosed to you at the time of purchase as well as any additional terms for in-app purchases that apply to your account with the mobile platform through which you are accessing the Service. Except where otherwise set forth at the point of purchase, and except where you purchase a “lifetime” subscription, any Premium Service purchased shall automatically renew for additional subscription terms of the same length unless your Premium Service is canceled by you or terminated by us before the date of such renewal. YOU MUST CANCEL YOUR PREMIUM SERVICE BEFORE IT RENEWS FOR A RENEWAL PERIOD IN ORDER TO AVOID BILLING FOR THE RENEWAL PERIOD TO YOUR PAYMENT METHOD (AS DEFINED BELOW) AT MAGICPIN®’S THEN-CURRENT PRICE FOR SUCH PREMIUM SERVICE. Should you wish to cancel your Premium Service, you may do so through the native settings to your mobile device. You may cancel your Premium Service at any time; however, any such cancellation will not become effective until the expiration of your then-current subscription term and you will continue to have access to the Premium Service during any period for which you have already paid. MAGICPIN® DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PREMIUM SERVICE, INCLUDING FOR ANY PARTIALLY-USED SUBSCRIPTION TERMS.
    2. Other In-App Purchases. MagicPin® may also offer additional features and services for purchase on the App (“In-App Purchases”). If you choose to make an In-App Purchase, you acknowledge and agree that additional terms, disclosed to you at the point of purchase, may apply (including, without limitation, additional terms that apply to your account with the mobile platform through which you are accessing the Service), and that such additional terms are incorporated herein by reference.
    3. Payment Method. You must have a current and valid credit card, debit card, or other payment method (including, as more specifically set forth in Section 13 hereof, a PayPal account) acceptable to or as specified by MagicPin® (a "Payment Method") in order to purchase any Premium Service, make an In-App Purchase, or otherwise make purchases through or access certain functionality of the App and Service. By establishing a User Account and providing your Payment Method to MagicPin® during the registration process or otherwise, you are expressly authorizing MagicPin® to charge any purchases you make in connection with your use of the Service to the Payment Method you provided at registration (or to a different Payment Method if you change your Payment Method information in your User Account or provide us with a different Payment Method in connection with a purchase), including, without limitation, periodic subscription fees for any Premium Service, or for In-App Purchases, Pin purchases, and any associated taxes and fees (including Service Fees (as defined below)). Please note that prices and fees (including Service Fees) are subject to change at any time upon posting. ALL SUBSCRIPTION FEES, SERVICE FEES, AND OTHER CHARGES ARE FULLY EARNED UPON PAYMENT AND ARE NON-REFUNDABLE. BETWEEN YOU AND MAGICPIN®, YOU, AND NOT MAGICPIN®, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR MOBILE DEVICE, PAYPAL, CREDIT OR DEBIT CARD BY AN APP STORE OR THIRD PARTY WHO HAD ACCESS TO THESE ACCOUNTS, WHETHER OR NOT SUCH AMOUNTS WERE AUTHORIZED BY YOU.
    4. Taxes. The fees specified in this Agreement or otherwise applicable to the Service are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). You are responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on MagicPin®’s net income.
    5. Promotions.  MagicPin® may offer from time to time promotions on the App or Site or with respect to the Service that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.




13. PAYMENT PROCESSORS. We utilize a third-party payment service, currently PayPal, to process certain transactions conducted through the Service. If you wish to purchase, sell, or (where conducted other than on an in-park, in-person basis) trade Pins through the Service, you must have an active and valid PayPal account and you must provide to us (through inclusion in your User Account profile and as otherwise required in connection with any transaction) all requested information with respect to your PayPal account. Our choice of third-party payment service is subject to change in our discretion.  In the event that we elect to change payment service providers, you will promptly set up an account with such new payment service provider, as instructed by us.  Any failure by you to secure and maintain a PayPal account (or such other payment service provider account as we may require) may result in suspension of your access to some or all of the Service. You agree to the terms of PayPal, available for review at https://www.paypal.com/us/webapps/mpp/ua/platform-seller-agreement, (or any successor payment service we select). You agree and acknowledge, however, that PayPal (and any successor payment service provider) is a Third Party Service (as defined below), and is not owned or controlled by MagicPin®. As more specifically set forth in Section 17 hereof, MagicPin® is not responsible, and shall not be liable to you, for the products, services, or conduct of PayPal (or any successor payment service provider).  




14. PURCHASE, SALE, AND TRADE TRANSACTIONS
    1. Transactions; Assumption of Risk. The Service provides a platform through which you may choose to buy, sell, and trade Pins with other users of the Service. You assume certain risks by using this Service and engaging in such transactions. All transactions relating to the purchase, sale, or trading of Pins in which you engage are directly and solely between you and the applicable user. MagicPin® is not involved with, nor provides a warranty for, any transaction between you or any other user, nor has title to any Pins, and is not a Pin Transferor or Pin Transferee in any transaction. MagicPin® is not an auctioneer. MagicPin® does not transfer legal ownership of Pins from Pin Transferors to Pin Transferees. You as a Pin Transferor and/or Pin Transferee assume, agree, and understand that you engage in any transaction hereunder at your sole risk, and MagicPin® shall have no liability or responsibility with respect to the same.
    2. Transaction Disputes. MagicPin® is not a party to any transaction between you and any other user of the Service, even where such transaction is facilitated by the Service. You agree and acknowledge that MagicPin® has no obligation, and will not, resolve disputes arising with respect to transactions between you and other users. If you have concerns with or would like to dispute your sale or purchase of any Pin through the Service, please contact PayPal or the then-current third-party payment processor that processed the applicable transaction. Notwithstanding the foregoing or anything herein to the contrary, however, MagicPin® reserves the right to terminate your access or the access of any other user to the Service, without refund of any nature, should MagicPin® determine, in its reasonable discretion, that you or such user have violated this Agreement in any manner.   
    3. Fees. Transactions completed through the Service may be subject to certain fees payable to MagicPin® (“Service Fees”). Any Service Fees will be disclosed at the point of purchase, sale, or trade, as applicable, though may be processed as a separate transaction from the underlying purchase, sale, or trade to which the Service Fees relate. ALL SERVICE FEES ARE FULLY EARNED UPON PAYMENT AND ARE NON-REFUNDABLE. For the avoidance of doubt, Service Fees will not be subject to credit or refund, even in cases where the underlying transaction is later disputed or refunded. 
    4. Pins. MagicPin® prohibits the listing, sale, or trade of any items other than Pins through the Service. You agree that you shall not post to the Service or offer for purchase, sale or trade, any item that is not a valid Pin. MagicPin® prohibits the listing, sale, or trade of counterfeit Pins. MagicPin® reserves the right to remove from the Service any listing relating to an item that MagicPin® determines, in its sole and complete discretion, does not qualify as a valid Pin. You are solely responsible for any defect or non-conformity, and for complying with any recall or safety alerts, with respect to any Pin you list on the Service. You will immediately remove any listing of a Pin upon issuance of any recall or safety alert or allegation of infringement with respect to the applicable Pin.
    5. Pin Transferors. With respect to any circumstance in which you are or act as a Pin Transferor hereunder, you represent, warrant, and covenant that (i) you have all rights necessary to sell, trade, or offer for sale or trade, any Pins you make available, and (ii) you will describe each such Pin truthfully, accurately, and completely. You acknowledge and understand that you enter into a legally binding contract when you make any offer to sell or trade a Pin and thereafter confirm such sale or trade by clicking the “Confirm Trade” button (or similar button) on the App.
    6. Pin Transferees. With respect to any circumstance in which you are or act as a Pin Transferee hereunder, you agree and acknowledge that you are solely responsible for reading the full Pin listing before offering to purchase or trade the applicable Pin.  You further agree and acknowledge that you enter into a legally binding contract to purchase or trade a Pin, as applicable, when you commit to purchase such Pin (including by clicking the “Place Order” button on the App) or when you accept an offer (without modification) to trade such Pin (including by clicking the “Confirm Trade” button on the App). By committing to purchase any Pin, you authorize MagicPin® to charge your Payment Method for the purchase amount, plus all related Service Fees and other fees, taxes, and shipping charges.  
    7. Shipping. Promptly following your receipt of notification through the App that any of your Pins have been sold or accepted for trade, but in any event within 5 business days of such confirmation, you must ship the applicable Pin to the Pin Transferee. All Pins must be appropriately packaged in a manner sufficient to prevent damage in transit, including, without limitation, through the use of bubble wrap or other appropriate packaging materials. All packages should be securely sealed and must be clearly marked with the shipping address provided through the App. You must also follow such additional shipping instructions or guidelines as may be posted on the App from time to time. To ensure the safety of exchanged Pins, MagicPin® suggests that all Pins be shipped via First Class Mail with tracking and proof of delivery, with the tracking number provided to the Pin Transferee. All Pins shipped by you hereunder must be marked as “Shipped” promptly following delivery to the carrier. As between a Pin Transferee and Pin Transferor, the Pin Transferor will retain risk of loss with respect to any shipped Pin until the time of delivery to the address provided by the Pin Transferee. Please note that you will not receive payments otherwise due to you as a Pin Transferor for Pins that are not delivered to the Pin Transferee. The Pin Transferee is responsible for all shipping costs incurred with respect to Pins purchased or accepted for trade.
    8. Taxes. Purchased or traded Pins may be subject to applicable taxes in your jurisdiction, which MagicPin® will collect from Pin Transferees on behalf of Pin Transferors where legally obligated to do so, and in the event taxes are collected and MagicPin® is legally obligated to do so, remit such taxes to applicable taxing authorities on behalf of Pin Transferor. Note that taxes are not included in the listed price for Pins, but will be displayed before confirmation of purchase. Taxes are based on several factors, including price, location, and state, local, federal, or other applicable rates at the time of purchase. Although we may assess taxes upon transactions conducted through the Service, you are ultimately responsible for the verification and reporting of any and all applicable taxes to the appropriate tax authorities, including instances where MagicPin® does not collect taxes on your behalf. MagicPin® shall have no liability for any taxes owed to any taxing authority by you as a result of any actions you take on or through the Service or App, and you agree to indemnify and hold MagicPin® harmless with respect to the same.
    9. International Buying, Selling, and Trading. Some components of the Service may be accessible internationally. We may elect to offer certain programs or tools to international Pin Transferors and Pin Transferees, including as may relate to the calculation of taxes. Notwithstanding the foregoing or anything herein to the contrary, however, you (and not MagicPin®) are solely responsible for complying with all applicable laws and regulations (whether foreign or domestic) governing your access to or use of the App, Site, and/or Service, including, without limitation, any laws or regulations applicable to the international sale, purchase, trade, shipment, or taxation of Pins.
    10. Pin Transfers Outside of the Service. You agree and acknowledge that, where you elect to conduct the sale, purchase, or trade of any Pin outside of the Service, even where such sale, purchase, or trade was first proposed via the Service, MagicPin® will have no record of such transaction. Without limiting the other disclaimers and limitations of MagicPin®’s liability and obligations hereunder, you agree and acknowledge that MagicPin® shall have no responsibility or liability whatsoever for any transactions conducted by you outside of the Service.     




15. PRIVACY.  
    1. Our Use of Personal Information. You acknowledge and agree that information collected by MagicPin® is subject to our Privacy Policy. By accessing or using the Service, you consent to all actions we take with respect to your information in compliance with our Privacy Policy.
    2. Your Use of Personal Information. Through your use of the Service, including, without limitation, your involvement in transactions or proposed transactions with other users of the Service, you may be provided or receive access to the personal information of other users of the Service (“User Information”). You agree that you shall only access or use User Information exclusively for the purpose for which it was provided or made available to you. You may not disclose, sell, rent, or distribute any User Information to a third party for any purpose not directly related to and necessary for your use of the Service. Additionally, you may not use User Information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so. 

 

16. INTELLECTUAL PROPERTY.
    1. MagicPin® Intellectual Property. As between you and MagicPin®, the App, Site, and Service, and all software and other technologies embodied in or used to provide any of the foregoing, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of MagicPin®. No rights are granted to you other than as expressly set forth herein.
    2. User Content. As between you and MagicPin®, but subject to Section 5(b) hereof, you own all right, title and interest in and to the User Content.
    3. Feedback. To the extent you provide MagicPin® with any suggestions, feature requests, evaluation results, feedback, or other input in relation to any aspect of the App, Site, or Service (collectively, “Feedback”), you hereby assign and agree to assign to MagicPin® all right, title and interest in and to such Feedback, including any intellectual property rights therein, and agree that MagicPin® will be free to use such Feedback in any manner, including by implementing such Feedback in the App, Site, Service, and/or MagicPin®’s other technologies, products and services, without compensation or other obligation to you.
    4. Data Use. Without limiting any of MagicPin®’s other rights hereunder, MagicPin® shall have the right to collect, examine, extract, model, manipulate, aggregate, collate, analyze, create analysis using, reproduce and otherwise use, on a de-identified basis, any information, including, without limitation, usage information, that MagicPin® learns, acquires or obtains in connection with this Agreement, within the scope of its regular business operations, including, without limitation, (i) developing, operating, and ensuring the integrity of data sets, algorithms or other analytical tools, (ii) testing, implementing, benchmarking, integrating, developing, optimizing or improving MagicPin® software and other products and services, and (iii) marketing, distributing, or otherwise making MagicPin® products and services available to its customers. 




17.  THIRD PARTY APPLICATIONS. The Service may contain links to or otherwise utilize or allow you to access third party applications and services (“Third Party Services”) that are not owned or controlled by MagicPin®. When you access third party websites or Third Party Services, you do so at your own risk.  MagicPin® encourages you to be aware when you leave the Service and to read the terms and conditions and privacy policy of each third-party website or Third Party Service (“Third Party Terms”) that you visit or from which you access any product or service. MagicPin® has no control over, and assumes no responsibility for, the content, accuracy, Third Party Terms, or practices of any third-party website or Third Party Service. In addition, MagicPin® will not and cannot monitor, verify, censor, or edit the content of any third-party website or Third Party Service. When you visit or use a third party’s website or Third Party Service, you acknowledge that such website or Third Party Service is subject to the applicable Third Party Terms, and you release us from any liability arising from your use of such websites or Third Party Service. You acknowledge that we are not responsible for such third parties or their products or services. Any such activities, and any Third Party Terms associated with such activities, are solely between you and the applicable third party.




18. DISCLAIMER OF WARRANTIES. THE APP, SITE, AND SERVICE ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND MAGICPIN® HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, AND NON-INFRINGEMENT. NEITHER MAGICPIN® NOR ANY PERSON ASSOCIATED WITH MAGICPIN® MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE APP, SITE, OR SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER MAGICPIN® NOR ANYONE ASSOCIATED WITH MAGICPIN® REPRESENTS OR WARRANTS THAT THE APP, SITE, OR SERVICE, OR ANY RESULTS GENERATED THEREFROM, WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE APP, SITE, OR SERVICE OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE APP, SITE, OR SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. MAGICPIN® MAKES NO REPRESENTATIONS OR WARRANTIES THAT ANY BID NOTIFICATIONS OR UPDATES WILL OCCUR IN REAL TIME, OR THAT YOU MAY BE ABLE TO PURCHASE, SELL OR TRADE ANY PIN ON OR THROUGH THE APP, SITE, OR SERVICE. MAGICPIN® FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES, AND DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR, THE ACTIONS OF OTHER USERS OF THE SERVICE, ANY THIRD PARTY SERVICE (INCLUDING, WITHOUT LIMITATION, PAYMENT PROCESSING SERVICES), OR THE QUALITY OR AVAILABILITY OF ANY PIN. AS BETWEEN YOU AND MAGICPIN®, YOU ASSUME ALL RISK IN CONNECTION WITH YOUR USE OF, INTERPRETATION OF, AND RELIANCE ON THE APP, SITE, AND SERVICE, AND ALL CONTENT AND RESULTS GENERATED THEREBY OR AVAILABLE THERETHROUGH. 




19. INDEMNITY. You agree to indemnify, defend, and hold MagicPin® and its officers, directors, employees, agents, licensors, and service providers harmless from and against any claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to (a) your violation of this Agreement, including, but not limited to, any access to or use of the App, Site, or Service in any manner not expressly authorized hereunder; (b) any claim that the User Content infringes, misappropriates, or otherwise violates the intellectual property rights or rights of privacy of any third party; (c) your negligence or willful misconduct; and (d) your breach of any applicable law, rule, or regulation or your violation of the rights of any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any action subject to indemnification by you, and in such event you agree to cooperate with us in defending such action.




20. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL MAGICPIN® OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE APP, SITE, OR SERVICE, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF DATA, DAMAGE TO OR LOSS OF PROPERTY, OR PERSONAL INJURY OR DEATH, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. IF, NOTWITHSTANDING THE PROVISIONS OF THIS SECTION, MAGICPIN® IS FOUND LIABLE FOR ANY LOSS OR DAMAGE UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, IN NO EVENT WILL MAGICPIN®’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, PAID BY YOU TO MAGICPIN® IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM. If you are not satisfied with the App, Site, or Service, your sole and exclusive remedy is to cancel your subscription to the Premium Service, if any, and cease all access to and use of the App, Site, and Service.




Some jurisdictions do not allow the limitation of liability for incidental or consequential damages or other damages or liability, so the foregoing limitations may not apply to you. To the extent that in a particular circumstance any limitation on damages or liability set forth in this Section is prohibited by applicable law, then, instead of the provisions hereof in such particular circumstance, MagicPin® shall be entitled to the maximum limitations on damages and liability available at law and equity in that particular circumstance.

You and MagicPin® understand and agree that the disclaimers, exclusions, and limitations in this Section 20 and in Section 18 are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that MagicPin® would be unable to make the App, Site, or Service available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.




21. DIGITAL MILLENNIUM COPYRIGHT ACT. 

MagicPin® is committed to respecting and protecting the legal rights of copyright owners in accordance with the Digital Millennium Copyright Act (Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.)).  If you believe any content infringes your intellectual property rights, please submit a notice to us describing such infringement (a “DMCA Takedown Notice”) with the following information:

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted 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;
• Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
• Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, email address;
• A statement that you have 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
• A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.

Any DMCA Takedown Notice should be sent to: magicpinapphelp@gmail.com .  You acknowledge that for MagicPin® to be authorized to takedown any content, your DMCA Takedown Notice must comply with all of the requirements of this Section.




22. SERVICE SUPPORT. If you encounter technical problems when using the Service, please email magicpinapphelp@gmail.com.




23. PROHIBITED COUNTRIES POLICY AND FOREIGN TRADE REGULATION. Neither the App nor its underlying technology may be downloaded to or exported or re-exported: (a) into (or to a resident or national of) any country subject to United States embargo; (b) to anyone on the U.S. Department of the Treasury’s list of Specially Designated Nationals or on the U.S. Department of Commerce’s Denied Party or Entity List; and (c) to any prohibited country, person, end-user, or entity specified by U.S. export laws. When using the App, you are responsible for complying with trade regulations and both foreign and domestic laws (e.g., you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a "terrorist supporting" country, and you are not listed on any U.S. government list of prohibited or restricted parties).




24. OPERATION FROM THE UNITED STATES. The Service is hosted by servers located in the United States. Using the Service may be prohibited or restricted in certain other countries.  If you use the App, Site, or Service from outside of the United States, you are responsible for complying with the laws and regulations of the applicable territory.  Without limiting the foregoing, if you attempt to use the App, Site, or Service from a physical location in the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure that differ from United States laws, please be advised that through your continued use of the App, Site, or Service, which is governed by U.S. law and these Terms (including the MagicPin® Privacy Policy): (a) you are transferring your personal information to the United States; (b) you hereby consent to such transfer and to the application of the laws of the United States and the State of Utah with respect to any dispute arising from or related to the Privacy Policy and your use of the App, Site, or Service, and to the exclusive jurisdiction of the courts of the United States and the State of Utah.




25. MISCELLANEOUS. 
    1. Service Availability.  You agree and acknowledge that the App, Site, and/or Service may be temporarily unavailable due to maintenance or other development activities.  MagicPin® will use commercially reasonable efforts to provide you with advance notice of any such unavailability, but shall not have any liability to you for any planned or unplanned unavailability or downtime.
    2. Assignment. You may not assign or transfer the Agreement or any of your rights or obligations hereunder to any other person without MagicPin®’s prior written consent. Any purported assignment in violation of this paragraph is void and of no effect. This Agreement is freely assignable by MagicPin®. The Agreement shall be binding on the parties and their permitted successors and assigns. Except as otherwise set forth herein, a person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.
    3. Governing Law; Dispute Resolution. If there is any dispute about or involving the Agreement, the App, Site, or Service, you agree that the dispute shall be governed by the laws of the State of Utah, without regard to conflict of law provisions. Any dispute arising from or relating to the subject matter of the Agreement, the App, Site, or Service,  shall be finally settled by arbitration in Salt Lake County, Utah, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, MagicPin® shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts sitting in Salt Lake County, Utah.  ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE APP, SITE, OR SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
    4. Class Action and Jury Waiver. YOU AND MAGICPIN® EACH AGREE THAT ANY PROCEEDING, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. IF A COURT OR ARBITRATOR DETERMINES IN AN ACTION BETWEEN YOU AND MAGICPIN® THAT THIS CLASS ACTION WAIVER IS UNENFORCEABLE, THE ARBITRATION AGREEMENT SET FORTH ABOVE WILL BE VOID AS TO YOU. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
    5. Force Majeure. We will not be liable for any delay or failure in the performance of our obligations under the Agreement if the delay or failure is due to any cause outside of our reasonable control.
    6. Notices. Any notice given under these Terms by any party to another party must be in writing and sent by email, and will be deemed to have been given upon transmission. Notices to MagicPin® must be sent to magicpinapphelp@gmail.com.  Notices to you will be sent to any email address associated with your User Account. For contractual purposes, you consent to receive communications from us in electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
    7. Severability and Waiver. If any part or provision of these Terms is held by a court of competent jurisdiction to be invalid, unenforceable, or in conflict with the law, that part or provision shall be replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision, and the remainder of these Terms will continue in full force and effect. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If we waive any breach of these Terms, such waiver will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
    8. Entire Agreement. These Terms, together with the Privacy Policy, constitute the sole and entire agreement between you and MagicPin® with respect to the subject matter hereof, and supersede and extinguish all prior agreements, representations (whether oral or written), and understandings regarding such subject matter. In the event of any conflict, the following order of precedence governs: (i) first, these Terms; and (ii) second, the Privacy Policy. The provisions of the following Sections of these Terms will survive any termination of this Agreement: Sections 5-8, 11, 12(c)-(d), 13-20, and 23-25.

For more information or other questions, please contact our customer support team by email at magicpinapphelp@gmail.com. You may report a complaint, if you are a resident of California, to the Complaint Assistance Unit of the Division of Consumer Services at the California Department of Consumer Affairs by telephone at (800) 952-5210 or by mail at 400 R Street, Sacramento, CA 95814, United States.