Your use of any of PitchMagic™ services is subject to the End User Website Agreement in its entirety
INTRODUCTION. PitchMagic, LLC, through its website located at www.pitchmagic.com provides you with website graphics, online coding and "Control Panel" software (the “Website Tools”) and grants you the non-exclusive, non-transferable right to use the supplied graphics and any supplied code and software on a monthly basis as long as all fees due are paid in full and your account is in good standing. PitchMagic™ reserves the right to terminate your use of supplied graphics and any supplied code and software in the event you have not abided by the rules of this agreement or your payment for any fees due are more than 10 days delinquent. The Website Tools, together with any website design, hosting and/or support services you purchase from PitchMagic™, are referred to as the “Services.”
TERM. PitchMagic™ products are not available on a trial basis. The initial term of this agreement is determined in the original order form or request, if no length of term is specified in the order form, the term is 30 days unless otherwise noted (the "Initial Term"). The initial term shall commence upon your acceptance of this agreement. This Agreement will be automatically renewed at the end of the initial term (and any renewal term) for the same term unless you provide written notice to PitchMagic™ of termination of this Agreement according to the Cancellation Policy described below.
BILLING. You agree to pay for PitchMagic™ products and services you purchase according to the current rates listed at the www.pitchmagic.com site and/or any otherwise mutually agreed upon fees. You authorize PitchMagic™ to automatically charge your supplied credit card for the agreed amount on a monthly basis or any other agreed upon billing cycle. At the end of each billing cycle, PitchMagic™ will automatically renew your agreement and bill your card or invoice you for all renewal fees for the next billing cycle. All setup fees will be charged to your supplied credit card at the time the order is placed. All monthly fees will be charged to your credit card at the time your site or service is live and ready for your use (at such time you can access the site or service via the internet). All payments previously made or due based on the terms of this agreement are neither cancellable nor refundable. Unless otherwise agreed, all payments are due one month in advance for the Service to be rendered during the upcoming month. You are responsible for all monthly fees due whether or not your website is actively used.
PitchMagic™ may, in its sole and exclusive discretion, immediately suspend or terminate your Services without notice to you if you fail to provide payment, or valid payment information or authorization or fail to pay for any Services when due. PitchMagic™ may charge a fee to reinstate any Service that has been suspended or terminated. PitchMagic™ may suspend or terminate a free account at any time in its sole discretion.
OWNERSHIP. PitchMagic™ and its licensors own all right, title, and interest in and to all website designs, website content, layouts, graphics, images, interfaces, scripts, HTML code, software, and trademarks included in or underlying the Services and, except as expressly provided herein, nothing in this Agreement or otherwise shall be deemed to grant to you, directly or by implication, estoppel or otherwise, any right or license with respect thereto.
YOUR SITE. You hereby acknowledge that PitchMagic™ is not responsible for the maintenance (e.g., updating content to keep it current) of your website(s).
FREE ACCOUNTS. PitchMagic may offer free accounts with limited functionality. The features and limitations for free accounts may change at any time. Changes may occur frequently, and you may not always be notified of the changes. You are not entitled to existing features that were available when you first signed up, but must use your free account according to the current features and limitations.
USER-PROVIDED CONTENT. Portions of the Service may contain user-provided or third party content, to which you may contribute appropriate content (the "Content"). For this Content, the submitter is the owner, and PitchMagic™ is only a distributor. By submitting Content to your website, you grant PitchMagic™ , as the host of your website, a limited license to use, host, and distribute the Content (including on a co-branded basis with a third party service provider). You should submit only Content which belongs to you and will not violate the intellectual property rights or other rights of other people or organizations. PitchMagic™ is sensitive to copyright and other intellectual property rights of others. PitchMagic™ also reserves the right to remove any user -provided content that comes to its attention and that it believes, in its sole discretion, is illegal, obscene, indecent, defamatory, incites racial or ethnic hatred or violates the rights of others. PitchMagic™ and its licensors also reserve the right to remove (or cause you to remove) their trademarks and logos from your website, at any time without notice.
INTERNET DOMAIN NAMES. PitchMagic™ has chosen independent third party domain name vendors who are ICANN accredited registrars, to provide domain name registration services for your benefit.
If PitchMagic™ registers a domain name in connection with any service or product provided to you, you will be listed as the registrant of that domain name. You hereby authorize PitchMagic™ to list itself as any other contact in connection with your domain name(s) registered by PitchMagic™ and to take any actions PitchMagic™ deems appropriate in those capacities. However, upon termination of any PitchMagic™ Service, PitchMagic™ may immediately cease acting in those capacities, and will not be responsible for forwarding any notices, emails or other correspondence to you or for taking any other actions in connection with your domain names. Additionally, in the event that your account is suspended by PitchMagic™ for lack of payment or any other reason, PitchMagic™ shall not renew any domain names that may become due for renewal during the suspension of your account. You will be solely responsible for all ongoing fees, as well as removing PitchMagic™ as the billing, technical, and admin contact, and any related name server changes, in connection with your domain names.
You agree that at no time during or after the term of this End User Website Agreement will PitchMagic™ or any of its licensors or service providers be responsible for any liability in connection with the loss or interruption of service or your right to use or own any Internet domain name.
PitchMagic™ provides domain name registration as a convenience to our clients but makes no guarantee that our efforts to pay for on your behalf or maintain your continued claim or right to use any Internet domain name will be error free.
You agree and understand that it is your sole responsibility to monitor and verify your continued claim or right to use any Internet domain name, and that all fees due to the third party domain name vendor are paid in full either by you or by PitchMagic™ . You agree that in no event (including negligence or otherwise on the part of PitchMagic™ ) will the liability of PitchMagic™ or any of its licensors or service providers for any damages, losses and causes of actions relating to or in connection with any Internet domain name registered on your behalf, whether in contract or tort (including negligence or otherwise) or under any other legal theory, exceed the actual dollar amount paid by you or by PitchMagic™ to the third party domain name vendor for the Internet domain name during the previous calendar year.
INTERNET DELAYS. PitchMagic™ services may be subject to limitations, delays, and other issues in the use of the internet. PitchMagic™ is not responsible for any delays due to the use of the internet.
ACCESSING YOUR NON PITCHMAGIC SITE. If you elect for any reason to give PitchMagic™ FTP, control panel, administrative or similar access to any website owned or controlled by you and not hosted by PitchMagic™, you understand and agree that PitchMagic™ is not responsible for any potential damage, data loss or actual security breaches to your website now or in the future. You agree you are responsible for backing up and restoring your own website code, HTML and content in the event you wish to have your original website restored. You understand that all indemnifications, limitation of warranties, and limitations of liabilities within this contract apply.
BANDWIDTH. Your PitchMagic site comes with a limited amount of data transfer each month, dependent upon the plan you chose. If you exceed this amount, you will be notified and your site will either be shut off, redirected somewhere else of your choosing, or you will be charged for all excess bandwidth used.
INDEMNIFICATION. You will indemnify, save harmless, and defend PitchMagic™ and its licensors and service providers and its and their employees, officers, directors, and agents (collectively “indemnified parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneys' fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to any use of the Services, including any violation of the PitchMagic™ Acceptable Use Policy.
NO WARRANTIES. You understand that PitchMagic™ will make best efforts in providing the highest quality service. YOU EXPRESSLY AGREE THAT: YOUR USE AND ANY OTHER USERS’ USE OF THE PitchMagic™ SERVICES, OR ANY THIRD PARTY SERVICE PROVIDED TO YOU BY PitchMagic™ , IS AT YOUR OR SUCH USERS’ OWN SOLE RISK. PitchMagic™ ’ SERVICES AND TECHNOLOGY AND ANY THIRD PARTY SERVICES PROVIDED TO YOU BY PitchMagic™ , ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PitchMagic™ AND ITS LICENSORS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT;. PitchMagic™ AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY THAT (A) PitchMagic™ ’ SERVICES AND ANY THIRD PARTY SERVICE PROVIDED TO YOU BY PitchMagic™ WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF PitchMagic™ ’ SERVICES AND OR ANY THIRD PARTY SERVICE PROVIDED TO YOU BY PitchMagic™ WILL BE ACCURATE OR RELIABLE, (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH PitchMagic™ ’ SERVICES, INCLUDING THOSE OF ANY THIRD PARTY, WILL MEET YOUR EXPECTATIONS, OR (D) THAT ANY ERRORS IN PitchMagic™ TECHNOLOGY, SERVICE AND OR ANY THIRD PARTY SERVICE PROVIDED TO YOU BY PitchMagic™ WILL BE CORRECTED.
LIMITATION OF LIABILITY. IN NO EVENT SHALL PitchMagic™ OR ITS EMPLOYEES, AFFILIATES, AGENTS, THIRD-PARTY SERVICE PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR USE, BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF PitchMagic™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event will the liability of PitchMagic™ or its licensors or service providers for any damages, losses and causes of actions, whether in contract or tort (including negligence or otherwise) or under any other legal theory, exceed the actual dollar amount paid by you for the PitchMagic™ service or third party service, product or products which gave rise to such damages, losses and causes of actions, during the previous one (1) month period prior to the date the damage or loss occurred or the cause of action arose.
GOVERNING LAW AND VENUE. This agreement shall be construed in accordance with, and all disputes hereunder shall be governed by, the laws of the state of Washington, excluding any conflict of laws rules. The parties agree that the judicial forum for any actions or proceedings brought relating to this Agreement shall be the federal or state courts located in Chelan County or the U.S. Federal District Court for the Eastern District of Washington, as appropriate, and that no other court in any other country or state will have jurisdiction or venue as to any legal action brought to enforce, interpret, or recover damages for a breach of this Agreement. The prevailing party in any such action shall be entitled to all costs and reasonable attorneys’ fees.
ASSIGNMENT AND SEVERABILITY. This Agreement shall be binding upon you, PitchMagic™ and our respective successors, and assigns. You may not assign this Agreement without the prior written consent of PitchMagic™. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.