A. MAGPIE GENERAL END USER LICENSE AGREEMENT. Thank you for selecting the Software offered by Magpie Software Inc. or its Affiliates (referred to as "Magpie," "we," "our," or "us"). Please review these license terms ("Agreement") thoroughly. This Agreement is a legal agreement between you and Magpie. By clicking "I AGREE," indicating acceptance electronically, accessing or using the Software, you agree to these terms. If you do not agree to this Agreement, then do not indicate acceptance of the Agreement and do not use the Software.
1.1 This Agreement describes the terms governing your use of the Magpie Software including content, updates and new releases (collectively, the "Software") and gives you certain rights and responsibilities depending on the software license you selected, purchased or subscribed to, as more fully described herein. The Agreement includes by reference:
1.2 An "Affiliate" means all Magpie companies and subsidiaries that directly or indirectly, control or are controlled by Magpie, or are under the common control with Magpie. As used in this Agreement, control means equity ownership of fifty percent (50%) or greater interest in the voting shares held by an entity.
2.1 The Software is protected by copyright, trade secret, and other intellectual property laws. You are only granted certain limited rights to install and use the Software, and Magpie reserves all other rights in the Software not granted to you in writing herein. As long as you meet any applicable payment obligations and comply with this Agreement, Magpie grants you a personal, limited, nonexclusive, nontransferable, revocable license to use the Software only for the period of use provided in the ordering and activation terms, as set forth in this Agreement, or in accordance with Magpie's then-current product discontinuation policies, as updated from time to time, and only for the purposes described by Magpie for the Software.
2.2 You acknowledge and agree that the Software is licensed, not sold. You agree not to use the Software in a manner that violates any applicable law, regulation or this Agreement. For example, unless authorized by Magpie in writing, you agree you will not:
For Software licensed on a payment or subscription basis, the following terms apply, unless Magpie notifies you otherwise in writing. This Agreement also incorporates by reference and includes program ordering and payment terms provided to you for the Software:
If you registered for a trial use of the Software ("Trial Period"), you must decide to purchase a Software license within the Trial Period in order to retain any Content (defined in Section 6) that you have entered into the Software, created within the Software data file, posted or uploaded during the Trial Period. If you do not purchase a Software license by the end of the Trial Period, your Content will no longer be available to you. To be very clear, after using the Software during the trial period, if you decide not to purchase the license to the full version of the Software, you will not be able to access or retrieve any of the data you added or created with the software during the trial.
You can view Magpie's Privacy Statement on the Magpie website, or via a link on the website for the Software you have selected. You agree to be bound by the applicable Magpie Privacy Statement, subject to change in accordance with its terms. Most importantly, you agree:
6.1 You are responsible for your content. You are legally responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("Content") uploaded, posted or stored through your use of the Software. You grant Magpie a worldwide, royalty-free, non-exclusive license to host and use any Content provided through your use of the Software. You agree not to use the Software for any illegal purpose or in violation of any applicable local, state, federal or international law. You are encouraged to archive your Content regularly and frequently. You are responsible for any Content that may be lost or unrecoverable through your use of the Software. You agree that you will not use the Software to share, store, or in any way distribute financial data that is not in accordance with the law. Any users suspected of having information which involves fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity proscribed by law may have their accounts terminated, their financial data erased, and they also may be reported to law enforcement officials in the appropriate jurisdictions. Magpie is not responsible for the Content or data you provide through your use of the Software. You agree not to use the Software to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:
6.2 Community forums. The Software may include access to a community forum to exchange information with other users of the Software and the public. Please use respect when you interact with other users. Magpie does not support and is not responsible for the accuracy of others' content in these community forums. Do not reveal information in the community forum that you do not want to make public. Users may post hypertext links to content hosted and maintained by third parties for which Magpie is not responsible.
Magpie may, but has no obligation to, monitor Content provided on the community forum. We may disclose any information necessary or appropriate to satisfy our legal obligations, protect Magpie or its customers, or operate the Software properly. Magpie, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
6.3 Magpie may freely use feedback you provide. You agree that Magpie may use your feedback, suggestions, or ideas in any way, including in future modifications of the Software, other products or services, advertising or marketing materials. You grant Magpie a perpetual, worldwide, fully transferable, sublicensable, irrevocable, fully paid-up, royalty free license to use the feedback you provide to Magpie in any way. Magpie will not sell, publish or share your feedback in a way that could identify you without your explicit permission.
7.1 Magpie does not give professional advice. Magpie is not in the business of providing legal, financial, accounting, health care, real estate or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.
7.2 We may tell you about other Magpie services. You may be offered other services, features, products, applications, online communities, or promotions provided by Magpie ("Magpie Services"). If you decide to use any of these Magpie Product or Services, additional terms and conditions and separate fees may apply. You acknowledge that in accessing some Magpie Services you may upload or enter data such as names, addresses and phone numbers, purchases, and other data to the Internet. You grant Magpie permission to use information you provide and about your experience so that we can provide the Magpie Services to you, monitor and analyze your use of the services, maintain and update your data, and address errors or service interruptions. We may use this data to improve services, enhance future services, identify potentially relevant offers, and produce anonymous research data. You grant Magpie permission to combine the data you have entered or uploaded with that of others in a way that does not identify you or any individual personally. You also grant Magpie permission to share or publish summary results relating to such research data and to distribute or license such data to third parties.
7.3 We may tell you about third party products or services. Subject to the Magpie Privacy Statement, Magpie may offer products and services on behalf of third parties who are not affiliated with Magpie ("Third Party Products") or the Software may contain links to third party websites ("Third Party Sites").You agree that Magpie can use your contact information, including name and address, for the purpose of offering these products to you in accordance with your stated Magpie contact preferences. If you decide to use any Third Party Products or access any Third Party Sites, you are responsible for reviewing the third party's separate product terms, website terms and privacy policies. You agree that the third parties, and not Magpie, are responsible for their product's performance and the content on their websites. Magpie is not affiliated with these Third Party Products or Third Party Sites and has no liability for them.
7.4 Communications choices. Magpie may be required by law to send you communications about the Software or Third Party Products. You agree that Magpie may send these communications to you via email or by posting them on one of our sponsored websites. We may also send business communications such as confirmations or notices, which will be delivered to you via email or posted on our websites. You are required to receive these communications. You can choose not to receive some types of communication, such as marketing messages.
7.5 You will track your passwords and accept updates. You are responsible for securely managing your password(s) for access to the Software. If you become aware of any unauthorized access to your Software account, theft or loss of your password, you agree to contact Magpie as soon as possible. The Software may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve and enhance the features and performance of the Software.
8.1 YOUR USE OF THE SOFTWARE AND CONTENT ACCESSIBLE THROUGH THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAGPIE, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE OR DATA PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY REFERRED TO AS, "SUPPLIERS") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SOFTWARE IS FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SOFTWARE. MAGPIE AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. FURTHER, MAGPIE DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE, CONTENT OR DATA TRANSMITTED THROUGH THE SOFTWARE. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER.
8.2 MAGPIE AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SOFTWARE IS IN ACCORDANCE WITH APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF MAGPIE, AND ITS AFFILIATES AND SUPPLIERS FOR ALL MATTERS OR CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SOFTWARE DURING THE SIX (6) MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, MAGPIE AND ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET MAGPIE SYSTEMS REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF MAGPIE AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF MAGPIE, ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE AND ITS USE.
You agree to indemnify and hold Magpie and its Affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Software or breach of this Agreement (collectively referred to as "Claims"). Magpie reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by Magpie in the defense of any Claims.
We may change this Agreement from time to time, and the changes will be effective when posted on our website for the Software or when we notify you by other means. Please review the Agreement periodically on the website for changes. We have the right to change any of the terms of this Agreement upon reasonable notice to you. We may also change or discontinue the Software, in whole or in part, including but not limited to, any feature or aspect of the Software, Internet based services, pricing, technical support options, and other product-related policies. Your continued use of the Software after Magpie posts or otherwise notifies you of any changes, indicates your agreement to the changes.
Magpie may immediately and without notice terminate this Agreement or suspend or terminate the license to the Software if you fail to comply with these terms or if you no longer agree to receive electronic communications (see Section 7.4). Upon any termination you must immediately stop using and delete or destroy all copies of the Software and any outstanding payments will become due. Any termination of this Agreement shall not affect Magpie's rights to any payments due to it. Magpie may terminate a free account at any time. Other requirements regarding termination or cancellation of your license to the Software may apply based on the specific ordering or activation terms for the Software. Sections 1.2, 5, and 8 through 16 will survive and remain in effect even if the Agreement is terminated, cancelled or rescinded.
You acknowledge that this website, the Software, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export the Software, or any part of the Software, in violation of these laws and regulations, directly or indirectly. You also agree not to provide access to any part of the Software to anyone who you have reason to know may use the Software in the development of nuclear, chemical, or biological weapons.
Minnesota state law governs this Agreement without regard to its conflicts of laws provisions.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE MAGPIE SOFTWARE OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply Minnesota law to all other matters. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND MAGPIE ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
To begin an arbitration proceeding, send a letter requesting arbitration and describing your claim to Magpie Inc., 708 2nd st SW Willmar MN 56201 USA. Arbitration will be conducted by the American Arbitration Association (AAA) before a single AAA arbitrator under the AAA's rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees and costs will be governed by the AAA's rules. Magpie will not seek its attorneys' fees or costs in arbitration unless the arbitrator determines your claims or defenses are frivolous. 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 decision of the arbitrator shall be final and not appealable, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. This Section 14 shall survive expiration, termination or recession of this Agreement.
Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English version, the English version of this Agreement shall govern. The parties hereby confirm that they have requested that this Agreement and all related documents be drafted in English. Les parties ont exige que le present contrat et tous les documents connexes soient rediges en Anglais./
This Agreement is the entire agreement between you and Magpie and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. This Agreement may be modified only by a written amendment signed by the parties or as provided in this Agreement in Section 10 above. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You cannot assign or transfer ownership of this Agreement to anyone. However, Magpie may assign or transfer it without your consent to (a) an Affiliate, (b) another company through a sale of assets by Magpie or (c) a successor by merger.
Your license to use the Software provided by Magpie is subject to the General End User License Agreement terms above and the Additional Terms and Conditions which govern your use of the Software indicated below. These Additional Terms and Conditions shall prevail over any conflict or inconsistency with the General End User License Agreement terms above.
MAGPIE SOFTWARE ("MAGPIE")
USE LIMITATIONS. IMPORTANT NOTICE. IF YOU ARE USING THE MAGPIE SOFTWARE, THE FOLLOWING TERMS APPLY TO YOU IN ADDITION TO THE GENERAL END USER LICENSE AGREEMENT TERMS ABOVE. Capitalized terms not otherwise defined below have the meanings provided in the General End User License Agreement.
Products and Services Covered. In addition to the Magpie collectible card game (CCG) price monitoring software ("Magpie"), the term "Software" as used in this Agreement includes: (i) the Notification service that you will be presented with an opportunity to use if you select certain versions of the Software, (ii) the Software's related internet-based components, and (iii) any updates or maintenance releases that we may provide or make available for the Software. This Agreement also includes certain special provisions and disclosures relating to services provided by Third Party providers.
A. Magpie Limited, Basic, and Pro.
(1) For Magpie Limited, Magpie Basic and Magpie Pro
a. You may monitor CCG price changes
b. Receive notifications of card changes with limits, as outlined above, corresponding to the software purchased.
You are not licensed or permitted to use the Software, or allow the Software to be used, to monitor CCG card prices on a professional or commercial basis (i.e., for a fee or consideration). Additionally, you must indemnify and defend Magpie against any claims or lawsuits, including (without limitation) attorneys' fees, that arise from or result from the use of the Software on a professional or commercial basis.
You agree to register as a licensee of the Software (unless you obtained the Software directly from Magpie) so Magpie can notify you of updates or corrections to the Software and to obtain the benefit of any warranties or guarantees given or made by Magpie with respect to the Software or Magpie Services. In this regard, you agree to keep Magpie apprised promptly of any change in your email address, mailing address and/or phone number so Magpie can be notify you of such updates or corrections.
Privacy and Use of Personal Information. At Magpie we place the highest importance on respecting and protecting the privacy of our customers. Our most important asset is our relationship with you. We want you to feel comfortable and confident when using our products and services and with entrusting your personal and tax return information to us. Our full Magpie Privacy Statement can be found by visiting http://magpie.power9pro.com/privacy. To contact us with a question, visit http://power9pro.com/contact.php. Or write to us at: Privacy Team, Magpie Software Inc., 708 2nd st SW Willmar MN 56201 USA.
Other Services. You may be made aware of or offered services, features, products, applications, online communities, or promotions provided by Magpie ("Magpie Services"). If you decide to use Magpie Services, you may be subject to additional terms and conditions governing these Magpie Services and separate fees may apply. You acknowledge that in accessing certain Magpie Services through the Software you may upload or enter certain data from your account(s) such as names, addresses and phone numbers, purchases, and sales among others, to the Internet. You hereby grant Magpie permission to use information about your business and usage experience to enable us to provide the Magpie Services to you, including updating and maintaining your data, addressing errors or service interruptions, and to enhance the types of data and services Magpie may provide to you in the future. You also grant Magpie permission to combine your business data, if any, with that of others in a way that does not identify you, your company or any individual personally to improve services and to compare business practices with other users. You also grant Magpie permission to create, market or promote new Magpie offerings based on your data.
Third Party Services. In connection with your use of the Software, you may be made aware of services, products, offers and promotions provided by third parties, and not by Magpie ("Third Party Services") that may include refund processing, cost basis lookup, professional tax review, and audit defense, among others. If you decide to use Third Party Services, you are responsible for reviewing and understanding the terms and conditions as well as any fees, if any, governing any Third Party Services. You authorize Magpie to use and disclose your contact information, including name and address, for the purpose of making the Third Party Services you choose available to you. You agree that the third party, and not Magpie, is responsible for the performance of the Third Party Services. The Software may contain or reference links to websites operated by third parties ("Third Party Websites"). These links are provided as a convenience only. Magpie is not responsible for the content of any Third Party Website or any link contained in a Third Party Website. Magpie does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites, and the inclusion of any link in the Software is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Magpie of any data contained in, or any services made available through, any Third Party Website. In no event will Magpie be responsible for the information contained in such Third Party Website or for Licensees use of or inability to use such website. Access to any Third Party Website is at your own risk, and you acknowledge and understand that linked Third Party Websites may contain terms and privacy policies as well as fees that are different from those of Magpie. Magpie is not responsible for such provisions, and expressly disclaims any liability for use of such Third Party Services and Third Party Websites. If you sign up for the Refund Processing Service which enables you to deduct certain fees and any applicable tax from the proceeds of your tax refund, you authorize Magpie (through its third party processor) to debit these amounts (excluding the Refund Processing Service Fee) from the bank account you identify as your Direct Deposit Bank Account in the event that you do not receive a tax refund that is sufficient to pay for them.
Questions. You can contact Magpie by mail at Magpie Software Inc., 708 2nd st SW Willmar MN 56201 USA if you have a question or concern about any product or service we sell over the Internet.
Date: May 2013