Acceptance of Terms
This is a legal agreement ("Agreement") between you, the user, together with any company or other business entity you are representing, if any (collectively, the "Member") and Design Magic Ltd. This Agreement governs the access and use of all products and services, including but not limited to Design Magic Websites, for which Member registers and which are provided by or through any website or co-branded website owned or controlled by Design Magic Ltd., or any successor websites (collectively, the "Service").
IF MEMBER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT PURCHASE, USE OR ACCESS THE SERVICE.
The Service is offered to Member conditioned upon Member's acceptance without modification of this Agreement. Member acknowledges that, from time to time, it may be necessary for Design Magic to update or revise certain provisions of the Agreement. By signing up for any Design Magic Service and accepting this Agreement, Member agrees that Design Magic may change the terms of the Agreement in its sole discretion without specific notice to Member. If Member does not agree to the changes proposed by Design Magic, or to any terms in this Agreement, Member's sole and exclusive remedy is to cancel Member's Design Magic Service ("Member's Account").
Notwithstanding the foregoing, Design Magic reserves the right to cancel, suspend or refuse access to the Service to anyone in its sole discretion. Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Service shall be subject to this Agreement.
General Use of the Service
Member shall not use the Service, in whole or in part, for any purpose that is unlawful or prohibited by this Agreement. Member agrees that Member will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another web page, use on any other Website or product, transfer, or sell any information, software, lists of users, databases or other lists, products or services provided through or obtained from the Service other than for use as contemplated in any Service, including but not limited to the creation or operation of Member created Websites, (collectively, "Member Site") in accordance with this Agreement. This means, among other activities, that Member agrees not to engage in the practices of "screen scraping", "database scraping", or any other activity with the purpose of obtaining lists of users or other information. Member agrees that Member will not use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party's use and enjoyment of the Service. Member may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Service. Except with the written permission of Design Magic, Member agrees that Member will not access or attempt to access password protected, secure or non-public areas of the Service. If Member attempts to access prohibited areas of the Service, Member may be subject to prosecution.
Charges Billing and Advertisements
Design Magic reserves the right to charge fees for the Service or any portion thereof and any applicable fees will be posted on the Design Magic Website. If Member is required to pay a fee for all or any part of the Service for which Member has chosen to register. Member hereby authorizes Design Magic to charge Member's valid and current credit or debit card in advance for all applicable fees incurred by Member in connection with Member's chosen Service and Member's Account. Member's Service and Account will automatically renew at the end of each subscription period, unless the Service or Member Account is terminated in advance of the end of the then-current term. If there are any annual, monthly or similar periodic subscription fees associated with the Member Account, these fees will be billed automatically to the Member's designated valid and current credit or debit card at the start of each renewal period, unless Member terminates the Service before the relevant period begins. If Member registered for the Service using a Design Magic promotional code or discount, after the initial promotional period expires, Member's subscription (base package and any purchased upgrades) will automatically be renewed and billing will continue at the then-current prices for the Service. Member further acknowledges that it is Member's responsibility to notify Design Magic of any changes to Member's credit card and to update Member's credit card number if Member's credit card has expired otherwise Member's access to the Service may be disconnected or interrupted. All fees shall be paid in UK Pounds Sterling. Design Magic shall consider ownership of an account and its constituent site(s) to be the identity of the person providing payment; or for free trial sites, the identity of the person registered for the trial period.
Design Magic reserves the right to change any fees (which includes but is not limited to, increasing prices and charging a fee for upgrades and/or a Service for which Design Magic does not currently charge a fee) at any time, provided, however, that Design Magic will provide Member with reasonable notice prior to making any fee changes. In addition, Design Magic will also give Member reasonable notice before any modification to the Service that could adversely impact Member's Site(s). If Member finds any change to the Service to be unacceptable, Member is free to cancel any part of the Service or Member's Account at any time, but Design Magic will not refund any remaining portion of Member's pre-paid fees when Member cancels any part of the Service or Member's Account and Member may be charged a cancellation fee after the initial 30 day money back guarantee period.
Member agrees to pay Member's Account balance on time. Member also agrees to pay any taxes, including sales or use taxes, resulting from Member's use of the Service. Member is responsible and liable for any fees, including solicitor and collection fees, that Design Magic may incur in its efforts to collect any remaining balances due from Member. This Section 3 shall in no way limit any other remedies available to Design Magic. Member also acknowledges and agrees that Member will be billed for and will pay any outstanding balances if Member cancels Member's Account or Member's Account is terminated due to Member's breach of this Agreement. Member must notify Design Magic of any billing problems or discrepancies within sixty (60) days after they first appear on Member's credit card account statement. If Member does not notify Design Magic within sixty (60) days, Member waives any right to dispute such problems or discrepancies.
If Member has registered for a trial of a Service ("Trial Period"), Member will have the entire Trial Period within which to purchase the Service Member is using in order to retain any Member Content (as defined below) that is on the Member Site(s) that Member built during the Trial Period. If Member does not purchase the Service by the end of the Trial Period, all of the Member Content will be deleted. Design Magic is not responsible for any damages to Member in the event Member decides not to purchase the Service and Design Magic deletes your Member Content after the Trial Period expires.
Design Magic may show advertisements on any portion of the Service that it provides to Members free of charge, excluding limited timed free trial accounts. Please see section nine (9) of this Agreement for more information regarding third party advertising content.
Member Registration/Privacy Policy
In order for Member to participate in the Service, Design Magic will require Member to provide specific information about Member and/or and Member's business. If Member chooses to become a customer, Member agrees to provide true, accurate and complete information and to refrain from impersonating or falsely representing Member's affiliation with any person or entity. Member shall maintain a valid email address at all times. Member shall be responsible for maintaining the confidentiality of Member's Account and password and shall be responsible for any and all transactions by users given access to such account or password and any and all consequences of use or misuse of such account and password. Member shall be responsible for all actions by such users, including without limitation former employees and former partners, and shall indemnify Design Magic for such actions as set forth in Section 14.
Any information supplied by Member upon registering for the Service and any other information about Member and/or Member's business (collectively, "Member Data") is subject to Design Magic's Privacy Policy. Design Magic will send Member newsletters and e-mail messages to inform Member of new products, promotions, features and helpful tips for Design Magic services. Design Magic will also use email to inform Member of important policy changes or subscription renewal notices.
Member Account Limitations
Member hereby acknowledges that Design Magic may, from time to time, establish general practices and limits concerning the use of the Service, including without limitation, (a) the maximum number of days that email messages, guest book entries, discussion board postings or other content posted on the Member Website will be retained by Design Magic, (b) maximum limits on bandwidth usage that will be allotted to Member, (c) maximum limits on storage space, (d) the maximum number of Websites per Member Account, (e) maximum number of photographs or other data according to the type of Member Account, (f) maximum limits on the number of pages within each Member Website, and (g) maximum time limitations for the retention of Member Content following a Trial Period or account cancellation. Design Magic further reserves the right to delete at any time without prior notice duplicate images uploaded for printing. Any of the foregoing limits will be consistent with the Service (including any upgrades) for which Member has registered. Member agrees that Design Magic has no responsibility or liability for the deletion or failure to store any content maintained or transmitted by the Service. Member further acknowledges and agrees that Design Magic reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice. Member also acknowledges that any references to unlimited Websites ("Unlimited Email") offered per paying account shall be defined as not exceeding 200 email addresses per paying account. Design Magic reserves the right to charge member for any third party fees associated with the creation of additional sites, including but not limited to domain registration fees. Additionally, the Design Magic service has the following service specific bandwidth limitations: (i) 100 Gigabytes of bandwidth and 10,000 music tracks.
Content Submitted to Design Magic
The Service includes a number of venues such as Member sites, Discussion Boards and/or other message or communication facilities designed to enable Members to disseminate and exchange thoughts and opinions to and with other users or the public. Although Design Magic firmly believes in the value of free and open dissemination and exchanges; however, it is under no obligation, but does reserve the right, to monitor, pre-screen, or otherwise remove any content stored in its servers. Therefore, Design Magic cannot be responsible for the appropriateness, accuracy, sufficiency, correctness, veracity, completeness, or timeliness of such thoughts and opinions. Member acknowledges that Member should always use caution when posting any personally identifying information about Member or Member's employees on the Service, the Member Site, or any other user sites.
Member Conduct
Member's right to use the Service is personal to Member and Member's company and its employees (if applicable). Member, and not Design Magic, is entirely responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Member Content") posted via the Service. Member, and not Design Magic, is also responsible for compliance with all laws, regulations and ordinances connected with all aspects of Member's use of the Service. Member shall not use the Service for any illegal purpose in violation of any local, state, federal or international law. Member must provide all required and appropriate warnings, information and disclosure, comply with all applicable laws and regulations, and take all other required and appropriate actions (collectively, "Information and Actions") in connection with Member's use of the Service. If the Service does not provide adequate facility or features for Member to provide such Information and Actions, then Member shall not use the Service.
Design Magic does not control or monitor the Member Content posted via the Service and as such, does not guarantee the accuracy, integrity or quality of such content. Design Magic reserves the right, but is not obligated to review the Member Content posted via the Service and to refuse or remove any such materials in its sole discretion, without notice at any time. Design Magic also reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or remove any information or materials, in whole or in part, from the Member Content in Design Magic's sole discretion. With respect to the content on the Member Website, Member agrees not to:
- post, upload or otherwise transmit any content which is misleading to others or impersonate any person or entity or falsely state or otherwise misrepresent Member's affiliation with a person or entity to others, including, but not limited to, consumers;
- post, upload or otherwise transmit any content that is threatening, abusive, harassing, tortuous, defamatory, obscene, libellous, invasive of another's privacy, hateful, or racially and ethnically objectionable;
- post, upload or otherwise transmit any content that Member does not have a right to post and transmit under any law or under contractual or fiduciary relationships (such as information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- post, upload or otherwise transmit any content, such that such posting, uploading, or transmission constitutes the infringement of any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- post, upload or otherwise transmit any materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment and/or attempt to access the accounts of others, or attempt to penetrate security measures of Design Magic, its vendors or suppliers or other entities' systems ("hacking"), whether or not the intrusion results in corruption or loss of data;
- post, upload or otherwise transmit any materials that impose an unreasonable or disproportionately large load on Design Magic's infrastructure that exceed the limits provided by the Service for which Member registered;
- post, upload or transmit any unsolicited or unauthorized advertising, promotional materials, "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- intentionally or unintentionally violate any applicable local or international law.
- forge any headers or other manipulation of identifiers in order to disguise the origin of any content transmitted through the Service;
- promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals; or
sell, distribute, disseminate or link to any sites for marketing, sales, distribution of: firearms, explosives, ammunition, liquor, tobacco products and any other products or services that (i) Member cannot legally sell, (ii) are misrepresented, and/or (iii) if sold via the Member Website could cause Design Magic to violate any law, statute or regulation.
- post or disclose any personal or private information or images about children or any third party without their consent (or a parent's consent in the case of a minor).
Design Magic may terminate Member's account for failure to comply with the above listed rules of Member Conduct. Additionally, Design Magic may request Member to place all or any portion of the Member Content behind password protection if Design Magic determines that such content is inappropriate for the community at large but does not otherwise violate the terms of this Agreement. If Design Magic has requested Member to place Member Content behind password protection or if Member independently determines that the Member Content appropriately belongs behind password protection, Member may not publish the password in such a way that negates the limited-access nature of the password protected site. If Design Magic requests Member to place any Member Content behind password protection and Member fails to do so promptly, Design Magic reserves the right to (a) place such content behind password protection itself, or (b) terminate Member's Account.
Discussion Boards
As part of the Service, Design Magic provides its Members with a venue and an opportunity to participate in discussion boards ("Discussion Boards"). Member shall abide by all terms and conditions of Design Magic's Discussion Board Policy, which is hereby incorporated by reference, in utilizing the Discussion Boards.
Third Party Content
For Member's convenience, the Service may contain products, services, content and information from third party providers (which includes advertisers and affiliates) and/or links to their Websites ("Third Party Content"). Such Third Party Content is not under the control of Design Magic and Design Magic is not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. Design Magic is under no obligation, but does reserve the right to pre-screen Third Part Content available on the Service and does not assume any responsibility or liability for the content provided by others. Design Magic is providing such Third Party Content to Member only as a convenience, and the inclusion of such content does not imply endorsement by Design Magic of such content or the affiliate or advertiser. Member may be subject to additional and/or different terms, conditions, and privacy policies when using third party products, services, content, software, or sites. Design Magic does reserve the right to remove content that, in Design Magic's judgment, does not meet its standards, but Design Magic is not responsible for any failure or delay in removing such material.
Design Magic is not and will not be responsible for (i) the terms and conditions of any transaction between Member and any third party, (ii) any insufficiency of or problems with any such third party's background, insurance, credit or licensing, or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that Member has a dispute with any such third party, Member releases Design Magic (and its affiliates, suppliers, agents and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Disclaimer of Warranties
MEMBER EXPRESSLY UNDERSTANDS AND AGREES THAT: (A) MEMBER'S USE OF THE SERVICE IS AT MEMBER'S SOLE RISK. DESIGN MAGIC AND ITS SUPPLIERS PROVIDE THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, AND THE MEMBER SITE(S) "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
(B) DESIGN MAGIC AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET MEMBER'S REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY MEMBER THROUGH THE SERVICE WILL MEET MEMBER'S EXPECTATIONS. (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, OR MEMBER SITES IS DONE AT MEMBER'S OWN DISCRETION AND RISK, AND MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MEMBER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
Limitation Of Liability
IN NO EVENT SHALL DESIGN MAGIC AND/OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF DESIGN MAGIC OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, ARISING OUT OF OR IN CONNECTION WITH (A) THE USE OR INABILITY TO USE THE SERVICE, (B) THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, (C) FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SERVICE OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO MEMBER. IN NO EVENT SHALL DESIGN MAGIC'S AGGREGATE LIABILITY TO MEMBER AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT MEMBER ACTUALLY PAYS TO DESIGN MAGIC UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR £500.00, WHICHEVER IS LESS. Without limiting the foregoing, neither Design Magic nor its suppliers is responsible for any of Member's data residing on the Service or Design Magic's suppliers' hardware. Member is responsible for backing-up Member's data and information that may reside on the Service or Design Magic's suppliers' hardware, whether or not such information is produced through the use of the Service. It is Member's responsibility to take the necessary steps to ensure that Member's primary means of business is maintained (if applicable).
Proprietary Rights to Member Content
Design Magic does not claim ownership of the Member Content that Member provides to Design Magic and/or places on the Member Site. However, Member grants Design Magic a worldwide, royalty-free, non-exclusive license to (i) host, use, reproduce, modify, distribute, transmit, combine with information provided by third parties, and publicly display the Member Content on and through the Service and in Design Magic's promotional or advertising materials (only for the limited purpose of promoting the Service), and (ii) sublicense to third parties such Member Content to the extent necessary for the creation and maintenance of, in part or in whole, such Websites. No compensation will be paid or due Member with respect to Design Magic's or its sublicensee's use of the materials as licensed above. By posting messages, uploading files, inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through any Member Site, Member warrants and represents that Member owns or otherwise controls the rights necessary to do so and to grant Design Magic the license set forth above, and, pursuant to the terms set forth in Section 14, Member will defend and indemnify Design Magic and its suppliers from any third party claim related to a breach of any of the foregoing representations and warranties.
Design Magic Proprietary Rights/Software Licenses
Member acknowledges and hereby agrees that the Service and any software and website designs used in connection with the Service (the "Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Member further acknowledges and agrees that content contained in sponsor advertisements or information presented to Member through the Service, advertisers and/or Discussion Boards is protected by applicable copyrights, trademarks, service marks, patents and other proprietary rights and laws.
Design Magic provides Member with a non-exclusive, non-transferable, limited license to use the Software, which Member agrees to use in accordance with this Agreement. Member may not sub-license or charge others to use or access the Software without first obtaining written permission or a written agreement from Design Magic. The Software is owned by Design Magic and/or its suppliers and is protected to the maximum extent permitted by copyright laws and international treaty provisions. Any reproduction, modification, creation of derivative works from or redistribution of the Software is expressly prohibited, and may result in severe civil and criminal penalties. The Software, its structure, sequence and organization and source code are considered trade secrets of Design Magic and its suppliers and are protected by copyright law. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. MEMBER MAY NOT DECOMPILE OR DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER.
Indemnification
Member agrees to indemnify and hold Design Magic and its suppliers, affiliates, partners, subsidiaries and employees (collectively, the "Indemnified Parties") harmless from any and all claims and demands, losses, liability costs and expenses (including, but not limited to, reasonable solicitors fees), incurred by an Indemnified Party arising out of or related to (i) Member's breach of this Agreement; (ii) any information (including but not limited to Member Content and Member's publicly posted information) submitted, posted, or otherwise provided by Member at the Member Site and/or to Design Magic and/or its affiliates; (iii) any dispute or litigation between an Indemnified Party and a third party caused by Member's actions; and (iv) Member's negligence or violation or alleged violations of any rights of another. These obligations will survive any termination of Member's relationship with Design Magic or Member's use of the Service. To the fullest extent permitted by law, the foregoing indemnity will apply regardless of any fault, negligence, or breach of warranty or contract of Design Magic and/or its suppliers, affiliates, partners, subsidiaries and employees.
Copyright and Trademark Notices
All materials of the Service and the Software (as well as the organisation and layout of the Service are owned and copyrighted or licensed by Design Magic, its affiliates or its suppliers. All rights reserved. No reproduction, distribution, or transmission of the copyrighted materials of the Service, which includes the Design Magic Websites (and any successor Websites or additional Websites or any co-branded Websites), and/or the Software, is permitted without the written permission of Design Magic. Any rights not expressly granted herein are reserved.
Design Magic, Design-Magic.co.uk, DMagic, DesignMagic.eu the Design Magic “Wizard” logo and other Design Magic logos and product and service names are trademarks of Design Magic Ltd. (the " Design Magic Marks"). Member agrees not to display or use the Design Magic Marks in any manner whatsoever without Design Magic's prior permission. From time to time Design Magic may offer a limited license to Members to display Design Magic award logos or other symbols of merit on Member Websites after Design Magic in its sole discretion confers such distinctions to the applicable Members. However, Design Magic reserves the right to withdraw such logos or symbols and delete them in its sole discretion for any reason.
Notification of Claims of Copyright Infringement
Any notifications of claimed copyright infringement should be sent to Design Magic's Registered Office.
Design Magic Limited c/o Ayres Bright Vickers
Bishopstone
36 Crescent Road
Worthing
West Sussex
BN11 1RL
Modification of the Service
Design Magic reserves the right, at its sole discretion, to, at any time, modify, or discontinue the Service, temporarily or permanently, (or any part thereof), including the imposition of limits on certain features and services or restriction of access to parts or all of the Service, with or without notice. Member agrees that Design Magic shall not be liable to Member or to any third party for any modification, suspension or discontinuance of the Service. Member further agrees that Design Magic shall have the right to remove any feature from the Member Site, with or without notice to Member, at any time at Design Magic's sole discretion, if Design Magic discontinues offering the feature for any reason. If Member does not agree to any such modifications, Member's sole and exclusive remedy is to cancel Member's Account.
Termination/Cancellation of Member Account
Either Member or Design Magic may terminate or cancel Member's Account (or any part of the Service) at any time, but Design Magic will not refund any pre-paid fees upon such termination or cancellation after the 30 day money back guarantee.
Termination by Member. Member may cancel your Member Account or any part of the Service at any time. To cancel your Service, Member must e-mail cancel@design-magic.co.uk or, in certain circumstances at Design Magic's sole discretion, on a case by case basis, by submitting a cancellation request via post. Design Magic reserves the right to collect fees, surcharges or costs incurred before Member cancels Member's Account in addition to the applicable cancellation fee(s).
Member must provide us with the following information in order for us to process the cancellation:
1. The exact name of the Service that Member would like to cancel
2. Member's username and password Member's email address
3. Member's billing information, including the credit card number
4. Member used when purchasing the Service
5. Member's reason for cancelling the Service
Termination by Design Magic. Design Magic may terminate Member's Service or Member's Account if Design Magic determines, in Design Magic's sole discretion, to discontinue offering the Service. Additionally, Design Magic, in its sole discretion, may terminate Member's Site, Member's Account or Member's use of the Service for any reason, including, without limitation, (i) if Member breaches this Agreement, (ii) if Design Magic is unable to verify or authenticate any information that Member provides to Design Magic, or (iii) if Design Magic believes that Member has violated or acted inconsistently with the spirit of this Agreement. If Design Magic terminates Member's Account pursuant to (i), (ii) or (iii) above, Member will forfeit all credits, pre-paid fees, and any other amounts accruing to Member, if any, and Design Magic shall not be required to refund, redeem, or pay amounts to Member upon such termination.
Effect of Termination. Upon termination of Member's Account for any reason, Design Magic reserves the right to (a) collect all charges, fees, commitments and obligations incurred or accrued by Member; (b) delete any Member Content, listings, messages or other information in connection with Member's Account; (c) prohibit Member's access to Member's Account, including without limitation by deactivating Member's password; and (d) refuse Member future access to the Service. In no event shall Design Magic be required to refund, redeem, or pay amounts to Member upon termination of Service or return any Member Content.
Member understands and agrees that the cancellation of Member's Account is Member's sole right and remedy with respect to any dispute with Design Magic. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this Agreement or Design Magic's enforcement or application of any such term; (2) any policy or practice of Design Magic, including Design Magic's Privacy Policy and Copyright Policy, or Design Magic's enforcement or application of these policies; (3) the content available through the Service or any change in content provided through the Service; (4) Members' ability to access or use the Service or Member's Website; or (5) the amount or type of fees, surcharges, applicable taxes, billing methods or change to the fees, applicable taxes, surcharges or billing methods, if any.
Notice
Statements, notices and other communications to Member may be made by mail, email, postings within Member's account or other reasonable means. Member shall be solely responsible for updating the account's registered email and postal address. Design Magic shall not be responsible for any undelivered notices caused by Member's failure to update the account information. Design Magic may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices generally on the Design Magic Website. Member should refer to the Member Support page of the Service for information on how to contact and/or provide notice to Design Magic.
Jurisdiction
This Agreement shall be governed in all respects by the laws of the United Kingdom. Such law shall be applied to the merits of any dispute or claim.
General
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Design Magic's failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. Member shall not assign this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without prior written approval of Design Magic, and any such attempted assignment shall be void. Design Magic shall have the right to freely assign this Agreement, and its rights and obligations hereunder, to any third party without requiring the consent or notice of Member. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefits of the parties hereto, their successors and permitted assigns. This Agreement sets forth the entire understanding and agreement between Design Magic and Member with respect to the subject matter hereof. The section and subsection titles in the Agreement are for convenience only and have no legal or contractual effect. Each party is an independent contractor and not an agent or representative of any other party. No party shall have any right or authority to create any obligation or make any representation or warranty in the name or on behalf of any other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon any party. The parties acknowledge and agree that this Agreement may be entered into electronically, and without the necessity of written signatures.
The Services hereunder are offered by Design Magic Ltd.
Violations
Please report any violations of this Agreement to Design Magic Ltd.
Independent Review
MEMBER ACKNOWLEDGES THAT MEMBER HAS READ THIS AGREEMENT AND ALL RELATED SITE SCREENS REFERENCED AND INCORPORATED IN THIS AGREEMENT AND THAT MEMBER AGREES TO ALL ITS TERMS AND CONDITIONS. MEMBER HAS INDEPENDENTLY EVALUATED ALL ASPECTS OF THIS AGREEMENT AND THE DESIRABILITY OF ENTERING INTO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.
--------------------------------------------------------------------------------
Service-Specific Terms
The following terms apply in addition to paragraphs 1-23 if Member has purchased a Service package which includes the particular service described. Design Magic may change service providers or stop providing the following services at any time without notice to Member; and Member shall permit Design Magic to act as its agent with respect to the following services:
Internet Domain Names
Design Magic Ltd only register domain names through Nominet accredited registrars and provide domain name registration services. Domain names will either be registered with the IPS Tag HEARTINTERNET or 123REG
If, after registering one or more domain names that are included with any Design Magic Service package, because of a customer's incorrect registration of a domain name or otherwise, member chooses to delete a previously registered domain name and subsequently register one or more additional different Domain Names, Customer will be charged the resulting Domain Name registration fees.
Member will be listed as the registrant and administrative contact in connection with Member's domain name. Member hereby authorizes Design Magic to list itself as the billing contact, technical contact and name servers in connection with Member's domain name and to take any actions Design Magic deems appropriate in those capacities. However, upon termination of the Service, Design Magic will immediately cease acting in those capacities including switching registrars. After such time, Design Magic will not be responsible to forward any notices, emails or other correspondence to Member or to take any other actions in connection with Member's domain name. Member will be solely responsible for all ongoing fees, as well as removing Design Magic as the billing, technical contact and name servers in connection with Member's domain name. An outgoing transfer fee of £35 (+V.A.T at prevailing rate) will be applicable to domains being transferred from Design Magic.
Email
Member hereby releases Design Magic (and its officers, directors, agents, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any connected with email disputes. By using email services, Member agrees to the terms and conditions contained in the "Acceptable Use Policy" and "Mass Mailing Policy" provided below:
Acceptable Use Policy
Acceptable Use Policy Definitions
"User" refers to the person or business entity that has contracted with Design Magic for e-mail services.
"End User" refers to the person, persons, or entity using a specific account (designated by a unique e-mail address) within a domain controlled by User and operated by Design Magic.
Unsolicited Bulk E-mail
Any User who sends unsolicited advertisements or solicitations, commercial or otherwise, may have its account disabled and be disallowed further service. The User is responsible for ensuring that its End Users use the email services obtained from Design Magic in an appropriate manner. Therefore, the User must take steps to manage the use of the services obtained in such a way that network abuse is minimized. The User must also make contact information publicly available, and must respond in a timely manner to any complaints. Design Magic shall consider any complaints regarding the User's End Users to apply to the User. In extreme cases, Design Magic operations personnel have the option to immediately disable any User account in order to forestall further abuse or damage to e-mail systems. Should this occur, the User shall be notified as soon as possible.
Unsolicited advertisements or solicitations sent from other networks which reference e-mail accounts hosted at Design Magic shall be treated as if they originated from the account referenced, unless there is sufficient reason given for Design Magic operations staff to believe that the message truly originated with some unrelated party. Likewise, postings made to the usenet newsgroups or other online forums which reference e-mail accounts hosted at Design Magic, and are deemed to be inappropriate according to the local ethical standards of that forum, may be treated in the same manner as unsolicited bulk e-mail above.
Filtering of Incoming E-mail
As owner of the equipment and other resources utilized to provide services, Design Magic has the legal right to block electronic communications from other entities on the Internet. Users should be aware that such blocking or filtering might take place if deemed necessary by designated members of the Design Magic operations staff (or a third party chosen by Design Magic and made known to the User). Whenever possible, the party being blocked shall be made aware of such action before it occurs.
Illegal Activities
Email services offered may only be used for lawful purposes. Transmission, distribution, or storage of any information, data or material in violation of United Kingdom or International Law, or by the common law, is prohibited. This includes, but is not limited to, material protected by copyright, trademark, trade secret, or any other statute. Design Magic reserve the right to cooperate with law enforcement and other legal authorities in investigating claims of illegal activity.
Right to Damages
Design Magic consider most instances of unsolicited bulk e-mail to be a theft of services and reserve the right to prosecute originators of same in a court of law. Design Magic reserve the right to collect damages (software, hardware, and man hours) if any harm is done to Design Magic network or equipment that requires repair or reconfiguration of any kind. If deemed appropriate by Design Magic User will be billed not less than £500 per individual complaint received by Design Magic staff. In addition, Design Magic reserve the right to collect punitive damages in recompense for any perceived loss of brand reputation.
Nothing contained in this Section 25 shall be construed to limit action Design Magic may take or remedies available to Design Magic in any way with respect to any of the described conduct. Design Magic reserves the right to take any additional actions Design Magic considers appropriate with respect to such conduct, including without limitation taking action to recover costs and expenses of identifying offenders and removing them from Design Magic's network or systems, and levying cancellation charges to cover costs in the event of disconnection for the causes outlined in this Agreement. In addition, Design Magic reserve at all times all rights and remedies available to Design Magic with respect to such conduct at law or in equity. Non-enforcement of any term or condition herein does not constitute consent or waiver, and Design Magic reserve the right to enforce such term or condition at its sole discretion.
Mass Mailing Policy
The following are the guidelines for all mass mailings by User, or a third party contracted on behalf of User to send mass mailings to End Users.
Policy objectives: The goals of this mass mailing policy include, but are not limited to, the following issues: controlling mailing rates that stress systems; eliminating service degradations; mitigating the thousands of bounce messages in mail queues that delay mail delivery; mitigating invalid return address information; and eliminating mass mailings during peak business hours.
Mass Mailing Definitions
"Opt-in" mailings are those which are to more than 250 End Users by either Users or their third party partner to any group of End Users. Opt-in means that the End User has signed up for mailings voluntarily. "Opt-in" implies that the mailing is not SPAM (defined below).
"SPAM" is defined as unsolicited bulk email that includes advertisements or solicitations, commercial or otherwise, regardless of content. Without exception, Design Magic prohibits the practice of mass-mailing unwanted e-mail solicitations of any type, regardless of content, and will take action to prevent this practice.
Mass Mailing Requirements
Mail send rate: Mass mailings will be done at a maximum rate of 10 messages/second.
Use of appropriate servers for originating mailings: use of Design Magic or its suppliers' hosted SMTP servers for mass mailings is strictly prohibited.
Delivery of mass mailings: (i.e. mass mailing sent by a domain hosted or not hosted by Design Magic to domains hosted by Design Magic) all mass mailings must be delivered through Design Magic or its suppliers' inbound MX machines. All mass mailings sent through Design Magic or its suppliers' SMTP servers will not be delivered.
Allowable send times: mass mailings will be started and completed between 9pm and 4am GMT.
Valid "From", "Reply-To", "Return-Path" and "Error-To" headers: If the following values are listed in your mail header please confirm that they are valid addresses and each email address must accept any bounces at the rate they may occur:
"From",
"Reply-To",
"Return-Path"
"Errors-To"
Valid "Abuse contact": Users who send/receive mass mailings must supply Design Magic with an emergency "abuse contact" to contact if there are any problems/complaints associated with the mailing.
Notifying Design Magic of mass mailing: Design Magic requires 5 days advance notice for all mailings. The following information must be mailed to support@design-magic.co.uk:
1. Customer Name
2. Number of recipients
3. "From" domain
4. "Target" domain
5. Mailing Subject
6. Mailing Date
7. Mailing Start-End Times
8. Rate of mailing (maximum of 10 messages per second)
9. Valid "From", "Reply-To", "Return-Path" and "Error-To" addresses (please list the values used, if any)
10. Copy of the message content
11. Method for users to "opt-out" of mailings
Failure to Comply with Mass Mailing Requirements
Failure to comply with the conditions set forth above may result in any or all of the following:
- Blocking of the mailing currently causing the problems/complaints.- Blocking of future mailings until the above requirements are satisfied. (Or until there is an agreement or special dispensation made by the Design Magic Abuse Administrator)
- If no "abuse contact" is provided to Design Magic, Design Magic reserves the right to block mailings without notifying User as necessary.
Design Magic reserves the right to suspend or terminate accounts for breaches of Design Magic's Mass Mailing Policy.
Merchant Account/Payment Processor for the Design Magic Storefront
Design Magic has chosen Paypal, to provide merchant account and payment gateway services which will enable Member to process credit card transactions at the Member Website. Merchant Accounts are provided to the Member under this Member Agreement as well as the Merchant Credit Card Services Agreement provided by Paypal. In order to establish a payment gateway and the necessary merchant account for Member to process credit cards, Member must agree to Paypal's terms and conditions. Member understands that by accepting Paypal's terms and conditions, Member is creating a separate contractual relationship between Member and Paypal and that Member, and not Design Magic, is responsible for all liability, and obligations in connection with that relationship. Design Magic is not responsible for the actions or inaction of Paypal or the unavailability or malfunction of their network or services. Design Magic is not a party to, and shall not be involved in or responsible for, transactions, agreements, and/or disputes between Member and Paypal ("Paypal Dispute"). In the event of a Paypal Dispute, Member hereby releases Design Magic (and its officers, directors, agents, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any connected with such disputes.
Standard Clip-Art and Photos
As part of the Service, Design Magic provides its Members with standard clip-art and photos to incorporate into their Member Websites. These clip art images and photographs are copyright Design Magic. In the event of a Dispute, Member hereby releases Design Magic (and its officers, directors, agents, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any connected with such disputes.
|
