Welcome to SPOTIST!
Penguin Magic, Inc. (“Penguin Magic”, “we”, “us”, or “our”) provides this trivia app for your personal use.
BY ACCESSING OUR SERVICE, YOU ARE ACCEPTING THIS AGREEMENT. WE RESERVE THE RIGHT TO MODIFY OR AMEND THIS AGREEMENT FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF OUR SERVICE FOLLOWING THE POSTING OF CHANGES TO THIS AGREEMENT WILL MEAN YOU ACCEPT THOSE CHANGES. UNLESS WE PROVIDE YOU WITH SPECIFIC NOTICE, NO CHANGES TO THIS AGREEMENT WILL APPLY RETROACTIVELY.
License Restrictions. Your access to our Service is provided on a temporary basis with no guarantee for future availability. We reserve the right to withdraw or modify any Penguin Magic Content or services we provide on our Service without notice. Except as otherwise provided in this Agreement, no part of our Service and no Penguin Magic Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use, without our prior express written consent.
Penguin Magic Content. All Penguin Magic Content (“Penguin Magic Content” includes, but is not limited to, written content prepared and posted by us, and the design, layout, look, appearance, and graphics) on our Service, as well as our Marks, defined in Section 7 (Our Marks), contained on our Service are owned by or licensed to us and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. We reserve all rights not expressly granted in, and to, our Service and the Penguin Magic Content on our Service.
Registration. To use our Service, you must create and register an account using a phone number (an "Account") and agreeing to the following requirements:
You must provide accurate and complete information and keep your Account information updated. If you provide any information that is inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is inaccurate, not current or incomplete, we may deny you access to Contests, areas requiring registration, disqualify you from Contests, revoke Prizes, and/or terminate your Account, at its sole discretion.
You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password and login credentials secure. You may never use another person’s user Account or registration information for our Service without permission. You must notify us immediately of any change in your eligibility to use our Service (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You shall have the ability to delete your Account, either directly or through a request made to one of our employees or affiliates.
You may establish, maintain, use and control only one Account on the Service. Each Account on the Service may only be owned, maintained, used and controlled by one individual. For avoidance of doubt, users may not "co-own" accounts on the Service. In the event Penguin Magic determines that you have opened, maintained, used or controlled more than one Account, in addition to any other rights that Penguin Magic may have, Penguin Magic reserves the right to suspend or terminate any or all of your accounts and terminate, withhold or revoke the awarding of any Prizes.
Each year all winners over the previous year may be required to provide updated address and social security (or other tax identification number) details to Penguin Magic. These details will be used to allow Penguin Magic to comply with tax regulations and may be shared with appropriate tax authorities. You, not Penguin Magic, are responsible for filing and paying applicable state and federal taxes on any winnings. Penguin Magic does not provide tax advice, nor should any statements in this Agreement or on the Service be construed as tax advice.
You agree that when using our Service, you will not:
Delete, modify, hack, or attempt to change or alter any of the Penguin Magic Content or notices on our Service;
Use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of our Service, servers, or networks connected to our Service or take any other action that interferes with any other person’s use of Service;
Use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on our Service for any reason;
Copy, modify, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which our Service is based;
Introduce into our Service any virus, rogue program, trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to disable, erase, or otherwise harm our Service or Penguin Magic Content, or perform any such actions;
Introduce into our Service any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person;
Use any Penguin Magic Content made available through our Service in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
Access or attempt to access any other person’s information or content;
Send any chain letters, junk mail, unauthorized e-mail, or advertisements;
Encourage any illegal activities, or post anything that is obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity;
Decrypt, transfer, frame, display, or translate any part of our Service;
Use screen reader technology, algorithms, or any other automated technological means to interpret, analyze, research, or gain information about a question or submit an answer to a question;
Provide information you know is false, misleading, untruthful or inaccurate, including, but not limited to, providing inaccurate contact or Account information;
Illicitly manufacture in-App benefits by providing inaccurate information, buying or selling such benefits, or other means;
Take any action that results in the creation or operation of multiple user accounts;
Create multiple entries into Contests, by any means, including multi-accounting;
Log into an Account into multiple devices simultaneously;
Log into an Account into more than five different devices over the course of the history of the Account;
Enter into a contest for which you are not eligible, whether by multi-accounting, providing misleading information, masking or altering your IP address, or other means;
Take any action which results in the sale or transfer of your Account;
Connect to or access any Penguin Magic computer system or network without authorization; or
Use the information in our Service to create or sell a similar service or similar information.
If for any reason the Service is not running as originally planned (e.g., if it becomes corrupted or does not allow the proper usage and processing of entries in accordance with the rules, or if infection by a computer virus, bugs, tampering, unauthorized intervention, actions by entrants, fraud, technical failures, or any other causes of any kind, in the sole opinion of Penguin Magic corrupts or affects the administration, security, fairness, integrity or proper conduct of the Service), Penguin Magic reserves the right, in its sole discretion, to disqualify any individual implicated in or relating to the cause and/or to cancel, terminate, extend, modify or suspend the Service, and select the winner(s) from all eligible entries. If such cancellation, termination, modification or suspension occurs, notification may be posted on the Site.
Your Content. Any information, text, images, messages, feedback, files, and/or other materials you transmit through our Service (collectively, “Your Content”) are your sole responsibility. YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OF, OR ANY ACTIVITIES ASSOCIATED WITH, ANY OF YOUR CONTENT. THE RESULTS OF ANY ACTIONS YOU TAKE BASED ON YOUR CONTENT OR OTHER CONTENT YOU FIND ON OUR SERVICE ARE SOLELY YOUR RESPONSIBILITY. Under no circumstances will we be liable in any way for Your Content or for any loss or damage of any kind incurred as a result of the transmission of any of Your Content through our Service.
Our Rights Related to Your Content. We do not pre-screen or approve Your Content and we have no obligation to monitor Your Content. However, we reserve the right to review, modify, monitor, distribute, remove, or delete any of Your Content at our sole discretion. We reserve the right at all times and in our sole discretion to disclose any information as we deem necessary to satisfy any applicable law, regulation, legal process, or governmental request or to edit, refuse to post, or to remove any information or materials, in whole or in part.
Prohibitions. Without limiting the generality of the foregoing, with respect to Your Content, all of the following transmissions are prohibited:
Content that is obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity.
Messages, data, code, or software that would violate our, or any third party, proprietary or intellectual property rights, including unauthorized copyright text, images, programs, trade secrets, or other confidential proprietary information, or use trademarks or service marks in an infringing fashion.
Photos or video of any third party without express, written permission. By uploading, transmitting, or posting any photo or video on or through our Service, you represent and warrant that you have express, written permission from all persons appearing in the media for all potential uses by Penguin Magic of such media.
Advertisements or solicitations of business, chain letters, pyramid schemes, or bulk e-mail lists or upload, post, or transmit the same posting more than once.
Commercial advertisements or solicitations for conduct or services that would in any manner constitute threatening, harassing, harmful, or abusive behavior.
Materials that are fraudulent or involve the sale of counterfeit or stolen items.
Materials that could cause us to violate any applicable law, statute, ordinance, or regulation.
License Grant to Your Content. By uploading, transmitting, or posting Your Content, you grant to us a perpetual, non-exclusive, worldwide, royalty-free license to use, copy, print, display, reproduce, modify, edit, publish, post, transmit, and distribute Your Content, subject to applicable law, in its entirety or in part. YOU AGREE TO INDEMNIFY PENGUIN MAGIC, ITS AFFILIATES AND BUSINESS PARTNERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS FROM ANY AND ALL CLAIMS, DAMAGES, EXPENSES, FEES, LIABILITIES, AND LOSSES, INCLUDING ATTORNEYS’ FEES, ARISING FROM ANY SUCH MATERIALS OR ANY FAILURE TO COMPLY WITH THIS SECTION.
ACCESS THROUGH MOBILE DEVICES.
Mobile Use. Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using our Service on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using our Service, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.
Additional Terms Applicable to iOS Devices. The following terms only apply if you install, access, or use our App on any device that contains the iOS mobile operating system developed by Apple Inc. (“Apple”). If you use our App on an Apple-manufactured device, and if there is any conflict between the terms in this Section and other terms in this Agreement, the terms in this Section will control.
Acknowledgement. You acknowledge that this Agreement is concluded solely between the parties, and not with Apple. Penguin Magic, not Apple, is solely responsible for our App and the content thereof. You further acknowledge that the usage rules for our App are subject to any additional restrictions set forth in the Usage Rules for our Apple App Store Terms of Service as of the date you download our App (the “Usage Rules”), and in the event of any conflict, the Usage Rules shall govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
Scope of License. The license granted to you is limited to a non-transferable license to use our App on any Apple-branded products that you own or control as permitted by the Usage Rules.
Maintenance and Support. You and Penguin Magic acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to our App.
Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to our App. In the event of any failure of our App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for our App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to our App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Penguin Magic. However, you understand and agree that in accordance with this Agreement, Penguin Magic has disclaimed all warranties of any kind with respect to our App, and therefore, there are no warranties applicable to our App.
Product Claims. You and Penguin Magic acknowledge that as between Apple and Penguin Magic, Penguin Magic, not Apple, is responsible for addressing any claims you may have, as limited by this Agreement, or claims of any third party relating to our App or your possession and/or use of our App, subject to Penguin Magic’s indemnification rights, including, but not limited to (i) product liability claims, (ii) any claim that our App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation.
Intellectual Property Rights. The parties acknowledge that, in the event of any third party claim that our App or your possession and use of our App infringe that third party’s intellectual property rights, Penguin Magic, and not Apple, will be responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required under this Agreement.
Legal Compliance. You represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
Third-Party Terms of Agreement. You agree to comply with any applicable third-party terms when using our App.
Third-Party Beneficiary. The parties acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and that, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
In-App Purchases. Through the App, you may purchase ("In App Purchase") certain goods designed to enhance the performance of the App (“Goods”). When you purchase Goods, you are doing so through Apple iTunes service and you are agreeing to Apple’s Terms and Conditions. http://www.apple.com/legal/internet-services/itunes/us/terms.html. We are not a party to any In-App Purchase.
Penguin Magic Obligations. Penguin Magic shall use commercially reasonable efforts to host, manage, operate, and maintain our Service for remote electronic access to, and use of, by you through Penguin Magic’s software, systems and hardware. Except as otherwise expressly provided in this Agreement, Penguin Magic shall have sole control and ownership over the operation, provision, maintenance, and management of our Service, including: (a) the location(s) from where any of our Service are provided or made accessible; (b) selection, deployment, modification, and replacement of our Service; (c) the support of our Service, the maintenance, upgrades, and any other corrections, fixes, repairs, patches, minor or major releases related to our Service; and (d) the use and engagement of subcontractor(s) to deliver our Service, either directly or indirectly, to you.
THIRD PARTY MATERIAL & WEBSITES.
Third Party Materials. Our Service may include material owned or licensed by third parties, as well as open source software, and links to websites owned by third parties (singularly and collectively "Third Party Material"). Access to and use of any Third Party Material is at your sole risk and we shall not be responsible for the accuracy or reliability of any information, data, opinions, advice or statements made in such Third Party Material. As we do not control the Third Party Material, particularly, third party websites, you agree to take precautions against any worms, trojan horses, computer viruses or other destructive elements that could result from your use of the Third Party Material.
No Endorsement. Our inclusion of Third Party Material on our Service shall not be construed as our endorsement, authorization of, sponsorship of, or relationship with any third party or the Third Party Material, and no rights or licenses are granted to you in the Third Party Material. You agree to defend and hold us harmless from any and all liability that may result from your use of the Third Party Material. Additionally, if a third party website links to our Service, it is not necessarily an endorsement, authorization, sponsorship of such third party, and may not be known to or authorized by us.
Any trademarks, trade names, trade dress, service marks, logos, domain names, and URLs (collectively, the "Marks") provided in the Penguin Magic Content or displayed on our Service are our property or the property of third parties, and no right to use such Marks is granted to you herein. Other trademarks, including proprietary product designs, owned by us or our affiliates and partners and used by our businesses may be reflected in the Penguin Magic Content and should not be used by any third party without written authorization by us or the owner of such Marks.
DISCLAIMERS OF WARRANTY; LIMITATION OF LIABILITY.
OUR SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. PENGUIN MAGIC DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE INTERNATIONAL CONVENTION FOR THE SALE OF GOODS, THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AND THE UNIFORM ELECTRONIC TRANSACTIONS ACT ARE EXPRESSLY DISCLAIMED.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, INCLUDING NEGLIGENCE, SHALL PENGUIN MAGIC, ITS OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, SUPPLIERS, OR ANY OTHER PARTY INVOLVED IN PROVIDING OUR SERVICE, BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, COSTS OF REPLACEMENT GOODS, LOSS OR DAMAGE TO DATA, SOFTWARE OR HARDWARE, INTERRUPTIONS, ERRORS, DEFECTS, MISTAKES, OMISSIONS, DELETIONS OF FILES, DELAYS IN OPERATION OR TRANSMISSION, NONDELIVERY OF INFORMATION, DISCLOSURE OF COMMUNICATIONS, OR ANY OTHER FAILURE OF PERFORMANCE OF OUR SERVICE RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION OR USE OF THE SERVICE, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF PENGUIN MAGIC OR ANY OTHER PARTY, OR ANY DAMAGES RESULTING FROM THE USE OF OR RELIANCE ON OUR SERVICE PRESENTED, EVEN IF PENGUIN MAGIC HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS PENGUIN MAGIC, ITS OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, SUPPLIERS, OR ANY OTHER PARTY INVOLVED IN PROVIDING OUR SERVICE FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, DAMAGES, COSTS, OR OTHER EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) THAT ARISE DIRECTLY OR INDIRECTLY FROM: (A) USE OF OUR SERVICE, (B) BREACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND/OR (C) YOUR SUBMISSIONS AND/OR POSTINGS TO OUR SERVICE.
LIMITATION OF REMEDIES.
Other than as expressly provided in this Agreement, your sole remedy for a breach of this Agreement or for any problems or complaints arising from your use of our Service or arising under this Agreement is your discontinuation of the use of our Service. You may attempt to delete or re-download and reinstall our App, but Penguin Magic makes no guarantee or warranty that such measures will be effective. Penguin Magic is not responsible for any defects or malfunctions in our Service, or any problems our Service may cause, including those arising under normal use and those arising under misuse, abuse, neglect, alteration, problems with electrical power, acts of nature, unusual temperatures or humidity, improper installation, or damage determined by Penguin Magic to have been caused by you.
CONSENT TO USE OF DATA; YOUR PRIVACY.
SYSTEM UNAVAILABILITY; ERRORS.
Unavailability. There may be times when our Service is unavailable due to technical errors or for maintenance and support activities. We do not represent, warrant, or guarantee that our Service will always be available or is completely free of human or technological errors.
Errors. Our Service may contain typographical mistakes, inaccuracies, or omissions and some information may not be complete or current. We expressly reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice. We do not make any representation or warranty concerning errors, omissions, delays, or defects in our Service or any information supplied to you via our Service, or that files available through Service are free of viruses, worms, Trojan horses, or other code that include or manifest contaminating or destructive characteristics.
COMPLIANCE WITH APPLICABLE LAWS.
Compliance with the Law. You agree to comply with all applicable laws, statutes, ordinances, and regulations regarding your use of our Service. Notwithstanding anything to the contrary, we make no representation that our Service is appropriate or available for use in other countries besides the United States of America. If you choose to access our Service from another country, you do so at your own risk.
Applicable Law. This Agreement is governed by the laws of the State of California, without regard to California’s conflict or choice of law. Any arbitration or court proceeding will take place in Sacramento, California, and you hereby consent to the exclusive jurisdiction and venue of the state or federal courts in Sacramento, California.
DIGITAL MILLENNIUM COPYRIGHT ACT PROCEDURE.
Generally. Penguin Magic investigates notices of copyright infringement and takes appropriate actions under the Digital Millennium Copyright Act (“DMCA”), Title 17, United States Code, Section 512(c), as follows: For purposes of providing written notice under the DMCA, Penguin Magic has designated an agent with the United States Copyright Office (“Copyright Agent”). All written notification, pursuant to the DMCA, must be submitted to the designated Copyright Agent at the following address:
Penguin Magic, Inc.
2510 Summit Street
Columbus, OH 43202
Process. If you are a copyright owner or agent thereof and believe that third-party submitted content or materials, including photographs and digital images (“Third-Party Submission”), available through this Site infringes upon your copyrights, you may submit written notification, pursuant to the DMCA, to Penguin Magic’s Copyright Agent, identified above. To be effective, the written notification must include:
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 at that site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has 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 the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Counter-Notice. If you believe that your Third-Party Submission, which was removed (or to which access was disabled), is not infringing, or that you have authorization from the copyright owner, the copyright owner’s agent or authority under the law, to publish or use the Third-Party Submission, you may submit a written counter-notice, pursuant to the DMCA, to Penguin Magic’s Copyright Agent, identified above. To be effective, the written counter-notice must include:
Your physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or Sacramento County, State of California, if your address is outside of the United States), and that you will accept service of process from the person, or the person’s agent, who provided notification of the alleged copyright infringement.
If a counter-notice is received by Penguin Magic’s Copyright Agent, Penguin Magic may send a copy of the counter-notice to the original complaining party (or agent thereof) informing that person that Penguin Magic may replace the removed Third-Party Submission or cease disabling it in ten business days. Unless the copyright owner (or agent thereof) files an action seeking a court order against the provider of the Third-Party Submission, the removed Third-Party Submission may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Penguin Magic’s sole discretion.
Misrepresentation. Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing, or that material or activity was removed or disabled by mistake or identification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider (such as or including Penguin Magic), who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. Accordingly, if you are uncertain whether Third-Party Submission infringes your or others’ copyrights, please consult with a copyright attorney prior to making a notice under the DMCA.
DISPUTE RESOLUTION AND GOVERNING LAW, JURISDICTION AND COSTS.
Notice of Complaint. You agree that, before initiating any claim, arbitration, or court proceeding against Penguin Magic, you will first send written notice to Penguin Magic specifying the problem or complaint, and provide Penguin Magic with at least sixty (60) days to cure such problem or complaint. Any arbitration or court proceeding initiated before the cure period will be invalid, and you consent to its prompt dismissal.
Informal Negotiations. To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and Penguin Magic agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one party to the other. Penguin Magic will send its notice to your address on file and email you a copy to the email address you have provided to us. You will send your notice to Penguin Magic at the address set forth below.
Binding Arbitration. If you and Penguin Magic are unable to resolve a Dispute through informal negotiations, either you or Penguin Magic may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION YOU WOULD HAVE THE RIGHT TO SUE IN A COURT AND HAVE A JURY TRIAL, AND THAT BY AGREEING TO THIS LICENSE, YOU ARE KNOWINGLY AND WILLINGLY WAIVING THE RIGHT TO A JURY TRIAL IN THE EVENT PENGUIN MAGIC ELECTS TO REFER A DISPUTE TO ARBITRATION. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website www.adr.org.
Determination of Arbitration. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement you and Penguin Magic may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
No Other Parties. You and Penguin Magic agree that any arbitration shall be limited to the Dispute between Penguin Magic and you individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other claim or action; (b) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exclusions. You and Penguin Magic agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of Penguin Magic’s intellectual property rights, (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion or privacy or unauthorized use, and (c) any claim for injunctive relief.
TERMINATION AND SURVIVAL; MISCELLANEOUS.
Benefiting Parties. Some of the provisions of this Agreement are for the benefit of Penguin Magic, its officers, directors, employees, agents, subsidiaries, affiliates, suppliers, and any third-party information providers. Each of these persons or entities shall have the right to enforce these provisions directly against you on its own behalf if you violate any of the terms or conditions of this Agreement.
No Waiver. Our failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provisions of this Agreement. We may assign its rights and duties under this Agreement to any party at any time without notice to you.
Termination and Effect. This Agreement may be terminated by either party at any time, without notice to the other party. Upon termination or expiration of this Agreement: (i) all rights, licenses, consents, permissions, and authorizations granted to you hereunder will immediately terminate; (ii) you shall immediately cease all use of our Service; and (iii) to the extent required, you shall promptly return any Hardware that has been licensed to you.
Notice. All official notices required or desired to be sent to Penguin Magic shall be in writing and sent by first class mail, postage prepaid, by next-day courier or by facsimile, to the attention of the entity identified below, at the address shown below. Penguin Magic may change such address at any time by updating this Agreement. Notice shall be effective on the fifth (5th) business day after mailing, on the first (1st) day after the date of sending via next-day courier.
Penguin Magic, Inc.
2510 Summit Street
Columbus, OH 43202
Survival. Obligations and duties arising under these terms, which by their nature extend beyond the termination of this Agreement, shall survive any termination.