Terms of Service

Last updated: July 2024

1. Your Relationship With Us

Welcome to MagicWave. The services (including but not limited to the mobile application, products, websites, and associated software as well as the services provided therein; hereinafter collectively, “MagicWave” or “Services”) are provided by META ELEMENTS INC. in the United States. “You”, “your” and “user(s)” in these Terms (as defined below) refer to any person using the Service.

Please carefully read these Terms of Service (the “Terms”), which affect your legal rights and obligations. The Terms sets out the rights and obligations of all users regarding the use of the Service and constitute a legally binding agreement between you and META ELEMENTS INC.

MagicWave is not intended for children under the age of 18. The Services are available to individuals aged 18 and over. Any access to or use of the Services by anyone under 18 is expressly prohibited and we will terminate your account. If you are between the ages of 18 and the age of majority where you reside (each a “Teen”), you must review the Terms with your parent or legal guardian to confirm that you and your parent or legal guardian understand and agree to these Terms. If you or any parent or legal guardian permit a Teen to use the Services, you hereby agree to these Terms on behalf of both yourself and the Teen. You further agree that you are solely responsible for any and all use of the Services by your Teen regardless of whether such use was expressly authorized by you.

By accessing or using our Services, you represent that (a) you are age 18 or older, (b) confirm that you have read, understood, and unconditionally accept these Terms and that you agree to comply with them, and (c) if you are a Teen, your legal guardian has reviewed and agreed to these Terms.

YOUR USE OF AND ACCESS TO MAGICWAVE IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING. BY ACCESSING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND INCORPORATED POLICIES, INCLUDING THE PRIVACY POLICY AND CONTENT GUIDELINE (COLLECTIVELY, THE “AGREEMENTS”). THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS OF SERVICE.

In your use of the Services, you may enter into additional terms and conditions and other agreements that may alter or override these Terms of Service, such as when you enter a contest or join a special program. In case of any conflict or inconsistency, the terms and conditions of those additional terms and agreements would override these Terms.

2. Use of Services and Your Responsibilities

You may access or use the Services either as a registered or unregistered user. For the best experience of the Services, we recommend you to register an account by choosing a name and password.

2.1 Registration Information

If you are a registered user, you promise that any registration information that you submit to us is true, accurate, and complete at all times. If you provide any information that is untrue, inaccurate, incomplete, or not current, you are deemed to be in breach of these Terms, and we have the right to suspend or terminate your account and refuse any and all current or future use of the Services by you.

You acknowledge that you are responsible for all the activity on your account, and for maintaining the security of Your user name and password and agree not to disclose such to any third party. If you share your account information with anyone, that other person may be able to take control of the account, and we may not be able to determine who is the proper account holder. We will not have any liability to you (or anyone you share your account information with) as a result of your or their actions under those circumstances. If you find out that someone’s used your account without your permission, you agree to notify us immediately.

You may register for and log in to MagicWave using login functionalities provided by third-party platforms, such as Google and Apple. In addition to the Terms, you agree to comply with the relevant third-party platform’s terms of service applicable to your use of such functionalities and acknowledge that we are not responsible for the content of such terms and conditions.

2.2 Rights to Use the Services

Subject to your complete and ongoing compliance with these Terms, we hereby grant you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use and display, access, and use the Services and our Materials (defined below), solely for your personal, non-commercial use, solely on a single device. The duration of such Services provision will be as determined by us at our sole discretion.

From time to time, certain Services will be subject to payment. You agree to comply with all such terms in relation to your payments to us for such Services, including but not limited to the Google Play and Apple App Store payments terms of service. All such payments from you are subject to the terms and conditions of the relevant payment service (whether that payment service provider is a third-party or us), in addition to any other relevant terms of this Agreement. You agree to comply with that relevant third party's terms and conditions in relation to the payment processing service when your payment is processed via a third-party service. We bear no responsibility for any transactions processed by, or any payments made to, a third party, whether or not in connection with the relevant Services. All purchases may be subject to taxes and other fees, including, without limitation, foreign exchange fees or differences in prices based on location (e.g. exchange rates), and you are solely responsible for all fees and taxes associated with any Services.

If such products or services are subject to automatic, recurring, or subscription-based charges, then you agree that (subject to applicable laws and regulations):

(a) such purchases or payments are generally made by you on an advance basis;
(b) you authorize us to:
    (i) save your chosen payment method's information (e.g. credit card information) on our systems; and
    (ii) bill your chosen payment method for the relevant time periods as chosen by or notified to you.
(c) if any payment made via your chosen payment method is rejected, denied, or returned unpaid for any reason:
    (i) we may not provide you with, or suspend our provision of, the relevant Services until payment is properly processed; and
    (ii) you are liable to us for any fees, costs, expenses, or other amounts we incur arising from such rejection, denial, or return (and we may automatically charge you for such amounts); and
(d) we will provide you with further instructions within MagicWave regarding how you may update or cancel the relevant payment method.

SUBJECT TO MANDATORY APPLICABLE LAWS AND REGULATIONS OR AS OTHERWISE SPECIFIED BY US IN THESE TERMS OR FOR A PARTICULAR ITEM OR SERVICE, IN NO CIRCUMSTANCES WILL WE BE REQUIRED TO PROVIDE A REFUND FOR ANY PAYMENTS MADE BY YOU TO US IN RELATION TO ANY ITEMS OR SERVICE (WHETHER USED OR UNUSED).

You acknowledge that subject to the policy of Apple App Store and Google Play, we reserve the right, to change our Terms, in whole or in part, or adjust pricing and availability for our Services or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. We do not provide price protection or refunds in the event of a price adjustment or promotional offering, whether permanent or temporary.

If you believe that we have charged you in error, and subject to applicable laws and regulations, you must contact us within 30 days of the date of the relevant charge; and no refunds will be given for any erroneous charges after such 30 days period.

2.3 Your Content

You are responsible for Your Content. Avoid sharing anything that you wouldn’t want others to see, that would violate this Agreement, or may expose you or us to legal liability.

You are solely responsible and liable for Your Content, and, therefore, you agree to indemnify, defend, release, and hold us harmless from any claims made in connection with Your Content. You represent and warrant that you have all rights necessary to provide Your Content to us for use in a manner consistent with the Agreement, and that Your Content, and our use of it in that manner, does not infringe or violate any other person’s intellectual property, proprietary or privacy rights.

You also represent and warrant to us that the information you provide to us is accurate, including any information submitted through Google, Facebook or any other social login (if applicable), and that you will update your account information as necessary to ensure its accuracy. If you choose to reveal any personal information about yourself to other users, you do so at your own risk. We encourage you to use caution in disclosing any personal information online.

You acknowledge and agree that Your Content may be viewed by other users, and, notwithstanding these Terms, other users may share Your Content with third parties. By uploading Your Content, you represent and warrant to us that you have all necessary rights and licenses to do so and automatically grant us a license to use Your Content in connection with the Platform for so long as Your Content remains in or associated with your Account.

You understand and agree that we may monitor or review Your Content, and we have the right to remove, delete, edit, limit, or block or prevent access to any of Your Content at any time in our sole discretion. Furthermore, you understand and agree that we have no obligation to display or review Your Content.

2.4 User Content

You will have access to User Content—but it is not yours, and you may not copy or use User Content for any purpose except as contemplated by these Terms.

Other users will also share content on our Platform. User Content belongs to the user who posted the content and is stored on our servers and displayed at the direction of that user.

You do not have any rights in relation to User Content, and, unless expressly authorized by us, you may only use User Content to the extent that your use is consistent with this Agreement, including our Acceptable Use Policy. You may not copy User Content or use User Content for commercial purposes, to spam, to harass, or to make unlawful threats. We reserve the right to terminate your account if you misuse User Content.

2.5 Our Content

We own all other content on our Platform.

(a) Ownership

Any other text, content, graphics, user interfaces, trademarks, logos, sounds, artwork, images, and other intellectual property appearing on our Platform is owned, controlled or licensed by us and protected by copyright, trademark and other intellectual property law rights. All rights, title, and interest in and to Our Content remains with us at all times. We grant you a limited license to access and use Our Content as provided under Your License below, and we reserve all other rights.

(b) Your License

For as long as you comply with these Terms, we grant you a personal, worldwide, royalty-free, non-assignable, non-exclusive, revocable, and non-sublicensable license to access and use our Platform for purposes as intended by us and permitted by these Terms and applicable laws. This license and any authorization to access the Platform are automatically revoked in the event that you fail to comply with these Terms.

2.6 Prohibited Use

You agree that You will not use, and will not permit any user to use the Services, including but not limited to:

(a) visit, obtain, or copy any materials, documents, or information on our Services by any method not provided by us;

(b) view, copy, or procure content or information from the Services by automated means (such as scripts, bots, spiders, crawlers, or scrapers), or to use other data mining technology or processes to frame, mask, extract data or other materials from the Services;

(c) modify, disassemble, decompile, prepare derivative works of, reverse engineer, or otherwise attempt to gain access to the source code of the Services;

(d) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts our networks, your accounts, or the Services;

(e) engage in activity that is illegal, fraudulent, false, or misleading;

(f) transmit through the Services any material that may infringe the intellectual property or other rights of third parties;

(g) build or benchmark a competitive product or service, or copy any features, functions, or graphics of the Services;

(h) use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would violate the intellectual property rights of any party, or is otherwise unlawful, that would give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation;

(i) upload or transmit any software, content, or code that does or is intended to harm, disable, destroy, or adversely affect the performance of the Services in any way or which does or is intended to harm or extract information or data from other hardware, software or networks of us or other users of Services;

(j) engage in any activity or use of the Services in any manner that could damage, disable, overburden, impair, or otherwise interfere with or disrupt the Services, or any servers or networks connected to the Services or our security systems;

(k) use the Services in violation of any of our Agreements or in a manner that violates applicable law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations.

If you violate any of the above restrictions or in the event that we deem you to have breached any of these Terms, your right to use our Services will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. You have no right, title, or interest in any Services, and all rights not expressly granted are reserved by META ELEMENTS INC.

Any use not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other intellectual property laws. We may use technological measures in the Services to prevent unlicensed or unauthorized use of the Services or to prevent any breach of this Agreement.

You agree that you will not seek to disable or circumvent them in any way.

3. Our Proprietary Rights in the Services

All texts, images, sounds, music, videos, animations, trademarks, logos, patterns, charts, visual interfaces, and code, including past, present, and future versions and all registered and unregistered intellectual property rights related to these (“Materials”) are legally owned, controlled, or legitimately authorized to be used by us. Unless otherwise stated in these Terms, you shall not use the Materials on our Services for any commercial purpose in any way without our prior written consent.

Our Materials are protected from unauthorized use, copying, and dissemination by copyright, trademark, patent, and other laws, rules, regulations, and treaties. Your use of the Services does not transfer to you any ownership or other rights in the Services or our Materials. Any use of our Materials not expressly authorized by these Terms is prohibited. Any unauthorized use of our Materials appearing on the Services may violate copyright, trademark, patent, and other applicable laws, rules, regulations, and treaties, and could result in criminal or civil penalties.

4. Pricing, Billing And Payment

You can buy Shells or a Subscription to our paid content through Apple App Store or Google Play. Subscriptions automatically renew until you cancel. Other purchases may only be available from us.

4.1 General

As part of our Service, we offer great subscription options and may also through Shells to unlock certain content. Our paid content is available through subscriptions of various durations (“Subscriptions”) or as a-la-carte unlocks (all paid services purchases, “Products”). Depending on the Product, you may be able to purchase paid content through your device’s native app store (collectively, “App Store”).

4.2 Prime Membership Subscriptions

(a) Duration. Our Subscriptions are continuous. Subscriptions begin the date you first purchase a Subscription and renew on a recurring basis (each, a “Period”) for periods of the same duration as your initial Subscription period until canceled. However, we may discontinue your Subscription if you are in dispute with us, or if you have previously requested a chargeback that we have successfully challenged.

(b) Pricing changes. We reserve the right to change the cost of our Subscriptions and other Products at any time. Any change will only become effective only after the expiration of your current Subscription period and after we provide you with notice of such change no fewer than fifteen (15) days before the end of the then-current Period.

4.3 Unlocked Content

You can access the content you unlocked with Shells anytime. They’re yours to keep and will always be available in your Library whether the content is offline or not.

5. Advertisement; Third Party Content and Services

When you use the Services, you may be able to access content from a variety of sources, which may be content posted by other users of the Services, content provided by third parties, and/or content you see in advertisements prepared or provided by third parties.

You understand and acknowledge that we don’t own or have no control over, and assume no responsibility for, the content, privacy policies, or practices of any third-party websites or services. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods, or services available on or through any such web sites or services.

6. Procedure for Making Claims of Intellectual Property Infringements

We respect the intellectual property rights of others and take the protection of intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Service.

If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, you may notify us by email at: feedback@metaelementsinc.com with "Notice of Intellectual Property Infringement" in the subject line, which contains:

(a) a physical or electronic signature of a person authorized to act on behalf of the owner or an agent of an exclusive right that is allegedly infringed;
(b) identification of the copyright claimed to have been infringed;
(c) identification of the material that is claimed to be infringing, and where it is located in the App or Service, as applicable;
(d) information reasonably sufficient to permit us to contact you;
(e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and;
(f) a statement that the above information is accurate and that you are the copyright owner or are authorized to act on behalf of the owner.

We respect the intellectual property rights of others and will respond to clear notices of alleged infringement. You acknowledge that if you fail to comply with all of the requirements of this section, your notice may not be valid.

Your Notification of Intellectual Property Infringement may be shared by us with the user alleged to have infringed a right you own or control, and you hereby consent to us making such disclosure.

7. Termination of the Account

Once you choose to delete your account, you will not be able to reactivate your account or retrieve any of the content or information you have added, modified, viewed, or accessed (including free content and paid content).

META ELEMENTS INC. may, in its sole discretion, suspend or terminate your account, remove or delete any Content, and/or refuse any and all current or future use of the Services at any time with or without notice if in our reasonable opinion, you have failed to comply with any of the provisions of the Agreements, and/or any applicable laws or regulations. We may also terminate or suspend your account if it has been inactive for a prolonged period and you have not used your account again after notice of such inactivity has been transmitted to the email address associated with your account or via inbox message.

If your account is terminated, access to your username, password, and any related information or content associated with your account may be terminated. As we do not guarantee the permanent availability of Content, you should make and maintain backups of any content you value at your own cost.

Your account name and other identifiers you adopt within us remain our property and we can disable, reclaim and reuse these once your account is terminated or deactivated for whatever reason by either you or us.

You acknowledge and agree that upon any termination permitted under these Terms for any reason, whether by you or us, you will not be entitled to and we will not be liable to you or any third party for any refund, reimbursement, or other liability. If we terminate your account, you may not use or participate in the Services without our express written permission.

8. Disclaimers, Limitations of Liability and Indemnification

Each of the clauses below only applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties or the limitation of liability in contracts, and as a result, the contents of this section may not apply to you. Nothing in this section is intended to limit any rights you may have which may not be lawfully limited.

8.1 EXCLUSION OF WARRANTIES

NOTHING IN THESE TERMS SHALL AFFECT ANY STATUTORY RIGHTS THAT YOU CANNOT CONTRACTUALLY AGREE TO ALTER OR WAIVE AND ARE LEGALLY ALWAYS ENTITLED TO AS A CONSUMER.

THE SERVICES ARE PROVIDED “AS IS” AND WE MAKE NO WARRANTY OR REPRESENTATION TO YOU WITH RESPECT TO THEM. IN PARTICULAR, WE DO NOT REPRESENT OR WARRANT TO YOU THAT:

NO CONDITIONS, WARRANTIES, OR OTHER TERMS (INCLUDING ANY IMPLIED TERMS AS TO SATISFACTORY QUALITY, FITNESS FOR PURPOSE, OR CONFORMANCE WITH DESCRIPTION) APPLY TO THE SERVICES EXCEPT TO THE EXTENT THAT THEY ARE EXPRESSLY SET OUT IN THE TERMS. WE MAY CHANGE, SUSPEND, WITHDRAW, OR RESTRICT THE AVAILABILITY OF ALL OR ANY PART OF OUR PLATFORM FOR BUSINESS AND OPERATIONAL REASONS AT ANY TIME WITHOUT NOTICE.

8.2 LIMITATION OF LIABILITY

NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS, OR SUBCONTRACTORS AND FOR FRAUD OR FRAUDULENT MISREPRESENTATION.

SUBJECT TO THE PARAGRAPH ABOVE, WE SHALL NOT BE LIABLE TO YOU FOR:

(I) ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY);
(II) ANY LOSS OF GOODWILL;
(III) ANY LOSS OF OPPORTUNITY;
(IV) ANY LOSS OF DATA SUFFERED BY YOU; OR
(V) ANY INDIRECT OR CONSEQUENTIAL LOSSES WHICH MAY BE INCURRED BY YOU. ANY OTHER LOSS WILL BE LIMITED TO THE AMOUNT PAID BY YOU TO META ELEMENTS INC. WITHIN THE LAST 12 MONTHS.
ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF:

ANY CHANGES WHICH WE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
YOUR FAILURE TO PROVIDE US WITH ACCURATE ACCOUNT INFORMATION; OR
YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
PLEASE NOTE THAT WE ONLY PROVIDE OUR PLATFORM FOR DOMESTIC AND PRIVATE USE. YOU AGREE NOT TO USE OUR PLATFORM FOR ANY COMMERCIAL OR BUSINESS PURPOSES, AND WE HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY.

IF DEFECTIVE DIGITAL CONTENT THAT WE HAVE SUPPLIED DAMAGES A DEVICE OR DIGITAL CONTENT BELONGING TO YOU AND THIS IS CAUSED BY OUR FAILURE TO USE REASONABLE CARE AND SKILL, WE WILL EITHER REPAIR THE DAMAGE OR PAY YOU COMPENSATION. HOWEVER, WE WILL NOT BE LIABLE FOR DAMAGE THAT YOU COULD HAVE AVOIDED BY FOLLOWING OUR ADVICE TO APPLY AN UPDATE OFFERED TO YOU FREE OF CHARGE OR FOR DAMAGE THAT WAS CAUSED BY YOU FAILING TO CORRECTLY FOLLOW INSTALLATION INSTRUCTIONS OR TO HAVE IN PLACE THE MINIMUM SYSTEM REQUIREMENTS ADVISED BY US.

THESE LIMITATIONS ON OUR LIABILITY TO YOU SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

YOU ARE RESPONSIBLE FOR ANY MOBILE CHARGES THAT MAY APPLY TO YOUR USE OF OUR SERVICE, INCLUDING TEXT MESSAGING AND DATA CHARGES. IF YOU’RE UNSURE WHAT THOSE CHARGES MAY BE, YOU SHOULD ASK YOUR SERVICE PROVIDER BEFORE USING THE SERVICE.

TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICES, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER, OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE US AND OUR AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

8.3 Responsibility for Content

The Service may invite or enable you and other users to create, submit, post, display, transmit, perform, publish, or distribute communications, content, and materials (as described in clause 2.3). You understand the person from whom the Content originates is solely responsible for such content made available in connection with the Services. We may not monitor or control the Content posted via the Services and we cannot take responsibility for such Content. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Services or endorse any opinions expressed via the Services. We make no and hereby disclaim any and all, warranties or other guarantees with respect to the Content.

You understand that your use of the Services is at your own risk and that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate, inappropriate, or in some cases, that does not meet your needs, or have been mislabeled or are otherwise deceptive. You agree that you must evaluate, and bear all risks associated with, the use of any Content available in connection with the Services. Under no circumstances will we be liable in any way for any Content made available via the Services, including, but not limited to, for any errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use of such Content. You may report Content that you believe violates these Terms, Content Guideline, or other inappropriate user behavior to our attention by making use of any report or similar functionality available in our Services or by contacting us through feedback@metaelementsinc.com

8.4 Indemnity

YOU WILL BE RESPONSIBLE FOR AND AGREE TO INDEMNIFY, DEFEND AND HOLD THE US AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND ADVISORS (EACH AN "INDEMNIFIED PARTY") HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, COSTS, EXPENSES, FEES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS) MADE BY A THIRD PARTY DUE TO OR ARISING FROM (A) INFORMATION IN YOUR ACCOUNT AND ANY INFORMATION YOU (OR ANYONE ACCESSING THE SERVICES USING YOUR PASSWORD) SUBMIT, POST OR TRANSMIT THROUGH THE SERVICES, (B) YOUR (OR ANYONE ACCESSING THE SERVICES USING YOUR PASSWORD) USE OF THE SERVICES, (C) YOUR (OR ANYONE ACCESSING THE SERVICES USING YOUR PASSWORD) VIOLATION OF THESE TERMS OR ANY APPLICABLE ADDITIONAL TERMS OF USE OR THIRD PARTY AGREEMENTS, AND (D) YOUR (OR ANYONE ACCESSING THE SERVICES USING YOUR PASSWORD) VIOLATION OF ANY RIGHTS OF ANY OTHER PERSON OR ENTITY.

9. Other Terms

Entire Agreement.  These Terms constitute the whole legal agreement between you and MagicWave and govern your use of the Services and completely replace any prior agreements between you and MagicWave in relation to the Services.

No Waiver.  Our failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right.

Security.  We do not guarantee that our Services will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programs, and platform to access our Services. You should use your own virus protection software.

Severability.  If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.

ARBITRATION AND CLASS ACTION WAIVER.  This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt-out procedure described below.

Informal Process First.  You agree that in the event of any dispute between you and MagicWave, you will first contact MagicWave and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.

Arbitration Agreement.  After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of MagicWave’s services and/or products, including the Services, or relating in any way to the communications between you and MagicWave or any other user of the Services, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and MagicWave. However, this arbitration agreement does not (a) govern any Claim by MagicWave for infringement of its intellectual property or access to the Services that is unauthorized or exceeds authorization granted in these Terms or (b) bar you from making use of applicable small claims court procedures in appropriate cases. If you are an individual you may opt out of this arbitration agreement within thirty (30) days of the first of the date you access or use this Service by following the procedure described below.

You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision and that you and MagicWave are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision will survive any termination of these Terms.

If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to:

META ELEMENTS INC, 8201 164th Ave NE, Suite 200, Redmond, WA, 98052-7615, United States

Email Address: feedback@metaelementsinc.com

The arbitration will be administered by the American Arbitration Association (AAA) under its rules including if you are an individual, the AAA's Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the AAA's Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA's rules are available at  www.adr.org or by calling 1-800-778-7879.

Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules. If you are an individual and have not accessed or used the Services on behalf of an entity, we will reimburse those fees for claims where the amount in dispute is less than $10,000 unless the arbitrator determines the claims are frivolous, and we will not seek attorney's fees and costs in arbitration unless the arbitrator determines the claims are frivolous.

The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence will not apply to the "Class Action Waiver" section below.

If you do not want to arbitrate disputes with MagicWave and you are an individual, you may opt out of this arbitration agreement by sending an email to feedback@metaelementsinc.com within thirty (30) days of the first of the date you access or use the Services.

Class Action Waiver. Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding ("Class Action"). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have the authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived and that any claims must be decided individually, through arbitration.

If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and MagicWave each waive any right to a jury trial.

If a counter-notice is received by MagicWave's Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed content or cease disabling it. Unless the original complaining party files an action seeking a court order against the Content Provider, member, or user, the removed content may be replaced, or access to it restored, in ten business days or more after receipt of the counter-notice, at MagicWave's sole discretion.

Please understand that filing a counter-notification may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country if you make a false or bad-faith allegation by using this process.

California Consumer Rights Notice. Under California Civil Code Section 1789.3, California users of the Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at the contact information set forth at https://www.dca.ca.gov/about_us/contactus.shtml.

Users of the Services who are California residents and are under 18 years of age may request and obtain the removal of User Content they posted by contacting us at: feedback@metaelementsinc.com. All requests must be labeled "California Removal Request" on the email subject line. All requests must provide a description of the User Content you want to be removed and information reasonably sufficient to permit us to locate that User Content. We do not accept California Removal Requests via postal mail, telephone, or facsimile. We are not responsible for notices that are not labeled or sent properly, and we may not be able to respond if you do not provide adequate information.

Exports. You agree that you will not export or re-export, directly or indirectly the Services and/or other information or materials provided by MagicWave hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.

U.S. Government Restricted Rights. The Services and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

10. App Stores

To the extent permitted by applicable law, the following supplemental terms shall apply when accessing the Platform through specific devices:

Notice regarding Apple.

By downloading the Platform from a device made by Apple, Inc. ("Apple") or from Apple's App Store, you specifically acknowledge and agree that:

Google Play.

By downloading the Platform from Google Play (or its successors) operated by Google, Inc. or one of its affiliates ("Google"), you specifically acknowledge and agree that: