TERMS AND CONDITIONS
The terms and conditions apply to your orders and use of General Magic products and services bought after 25 January 2017.
General Terms and Conditions
General Magic B.V.
De Smalle Zijde 3, NL- 3903 LL Veenendaal, the Netherlands, and any affiliates (together, “General Magic”)
These Terms and Conditions apply:
i. to any order for, purchase of or other form of obtaining:
– Products and Services directly via General Magic; and
– Apps via a Reseller; and
ii. to your Account and the creation thereof; and
iii. to the use and/or access of:
– all Products, Services, Apps and User Contributed Data; and
– Built-in Devices, except in the case that the terms and conditions from the Reseller or third party manufacturer of such Built-in Devices apply; and
iv. to uploading, using and/or accessing your User Data.
By (i) submitting any order for, purchase of or other form of obtaining of a Product, Service, or App, and by (ii) using, and/or accessing any Platform, Service, or App and by (iii) creating an Account, you accept and are bound by these Terms and Conditions and any amendments and additions to it.
The list of definitions used in these Terms and Conditions can be found at the end of this document.
2 Your order directly via General Magic
2.1 How to place an order
General Magic offers Products and Services via General Magic Websites, Platforms and Apps. These Products and Services may contain or consist of General Magic Content and Third Party Material.
When you would like to order, purchase or in any other form obtain a Product or Service directly from General Magic, you can place an order via a Platform, a General Magic Website or an App.
Any order submitted is subject to acceptance by General Magic. An agreement is concluded upon acceptance by General Magic by way of an order confirmation. General Magic reserves the right to reject any orders in full or in part or to apply a maximum order amount. All orders for Products are subject to stock availability.
2.2 Price and payment
Some Products and Services are subject to payment. Prices indicated for Products and/or Services on the General Magic Websites and App are inclusive of VAT and standard shipping costs and handling charges (if any). You are responsible for any local sales taxes, other taxes and government levies, if any, associated with the order. Prices are subject to change at any time (and subject to clause “Termination and alteration” in the section “General Magic’s Rights” in the chapter “Your Usage” of these Terms and Conditions) but will not affect orders for Products or Services made prior to the date of the change.
Some Services are offered free of charge. General Magic reserves the right to depart from or to cease offering such Services free of charge at any time. General Magic will inform you if a Service is to be offered for a fee in the future. In such event, you may choose to either continue your use of the Services for such fee or to terminate your use of the Service.
All orders must be paid for through the payment service as made available by General Magic. In order to submit orders and use such a payment service you must supply details of your preferred payment method, billing and shipping address (if applicable) and/or any other details necessary to complete the order.
If, for whichever reason, collection through such a payment service should fail, General Magic will invoice you by post for the amount payable, which must be paid by cheque, postal order or credit card within 15 days from the date of invoice.
2.3 Delivery and risk of loss
General Magic will aim to deliver the Product within 30 days of order acceptance. If multiple Products are ordered, General Magic reserves the right to deliver each Product separately. Furthermore, General Magic aims to make Services available within 24 hours after the order acceptance.
A Product will be delivered to your delivery address. A Service will be downloadable or delivered and/or made available to you electronically. The risk of loss or damage to a Product will pass to you at the moment the Product is delivered to you. The risk of loss or damages to a Service will pass to you at the moment the Service is made either available to you or delivered to you electronically.
If you do not take delivery of the Product, General Magic reserves the right to charge you for the reasonable cost of storing the Product until delivery can be made.
If delivery to you should fail for any reason outside of General Magic’s control, General Magic reserves the right to cancel the agreement and refund any monies paid.
If General Magic by mistake delivers a Product to you or delivers and/or by mistake makes available a Service to you, please contact General Magic in order to receive further return instructions (email at firstname.lastname@example.org).
3 Your cancellation rights of orders
For Products purchased via General Magic, you have a right to cancel the purchase agreement for any reason for a period of 14 days commencing on the date of delivery to your delivery address. General Magic will refund the purchase price and original shipping costs actually paid (with the exception of the supplementary costs resulting from its choice of a type of delivery other than the least expensive type of standard delivery offered by us, or where multiple Products were ordered and not all Products purchased are returned). General Magic will carry out such reimbursement using the same means of payment as you used for your initial transaction, unless you have expressly agreed otherwise.
To exercise your cancellation right you must inform General Magic about your decision by contacting General Magic during the 14 days following delivery by email at email@example.com to obtain an authorisation number for the return of your order.
Subsequently, you should without any delay return the Product, free of all interests, liens, or claims otherwise, to the address mentioned on the postage label that you receive when you have obtained an authorisation number for the return of your order.
If you decide to cancel the purchase agreement and return the Product to General Magic, you will be liable for any diminished value of the Product resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the Product.
You accept that General Magic may charge you for any shipping or postage costs incurred directly associated with returning the Product.
For Services obtained via General Magic you agree that the performance of Services by General Magic will commence immediately – or at least as soon as possible – on General Magic’s acceptance of your order and that you relinquish your 14 day cancellation right upon performance.
For Apps, obtained via General Magic or a Reseller you agree that the performance of the Apps obtained by you will commence immediately – or at least as soon as possible – after you have downloaded the App and that you relinquish your 14 day cancellation right upon performance.
4 Your Account and your subscriptions
4.1 Your Account: registration and management
You may be required to create an Account and subsequently to log into the relevant Platform in order to:
i. order a Product or Service;
ii. access or use a Service, App and/or User Contributed Data (either obtained directly via General Magic or via a Reseller), and
iii. be able to upload and/or download User Data and/or User Contributed Data.
Notwithstanding your right to use a pseudonym (“alias” or “nickname”) when creating an Account, you agree to provide correct information about yourself when registering. Please keep your Account information up to date to and promptly change your Account information in case any relevant changes occur.
Services, Apps, and User Contributed Data are intended solely for users who are eighteen (18) years of age or older. You represent and warrant that you are 18 or older. Do not create an Account as another individual, group or entity without such party’s consent, or sell or transfer your profile or Account.
You are responsible and liable for any activity that occurs on or via your Account. You are responsible for your own username and activities related thereto. General Magic is not responsible for any loss that results from the unauthorized use of your Account, with or without your knowledge.
You must notify General Magic immediately in the event you become aware of any access to or usage of Services, Apps, User Data and/or User Contributed Data by third parties under your Account that you did not authorize or any other possible breach in security.
A Service may be offered on a single basis or on a subscription basis. When you have a subscription, the Service will be provided to you either regularly or continuously.
Subscriptions will be entered into for an indefinite period of time, unless General Magic and you have agreed on a fixed period of time.
4.3 Termination of your Account and/or your subscriptions
In case you wish to terminate your Account and/or subscription, you may do so by contacting General Magic via email at firstname.lastname@example.org, observing a 30 days’ notice period.
General Magic may also terminate your Account and/or subscription for neutral reasons (and notwithstanding its termination rights under chapter “Termination and Restrictions in case of Breach by You” of these Terms and Conditions). General Magic shall always try to inform you as much as possible of any imminent termination, but – in any case – will notify you at least thirty (30) days before the actual termination of your Account.
In the event of termination of your Account and/or subscription, you must destroy all copies of the General Magic Content and all of its component parts.
After termination of your Account, you will not have access to any data including your User Data. It is your own responsibility to remove any User Data that you wish to keep before the termination is complete.
If your subscription is for a fixed period of time, it will automatically end upon expiration of such period of time.
5 Your usage
5.1 Your usage rights
5.1.1 Services and Apps
General Magic grants you permission to access and use the Services and Apps obtained directly via General Magic or via a Reseller in accordance with these Terms and Conditions. In case a Service and/or App should be purchased, the permission to access and use this paid Service and/or App will be granted to you after the purchase has been completed.
5.1.2 General Magic Content
Services and Apps will contain General Magic Content. You are granted a licence to use the General Magic Content provided to you as part of and/or via your Product, Service or App, on the terms set out in this clause.
This licence is non-exclusive and non-transferable. This licence does not include any right to obtain future upgrades, updates, supplements, or any support or technical assistance relating to the Service, App or General Magic Content, unless General Magic has specifically indicated that obtaining those is an integral part of the Product, Service or App.
If upgrades, updates or supplements to the Service, App or General Magic Content are obtained, the use thereof will be governed by these Terms and Conditions or such other terms and conditions and may be subject to additional payments, as you shall be informed and asked to accept prior to General Magic supplying you with the relevant upgrade, update or supplement.
5.1.3 User Data and User Contributed Data
General Magic grants you permission to (i) upload, use and modify User Data, and (ii) upload and use User Contributed Data, all in accordance with these Terms and Conditions.
By uploading any User Data, you will retain all rights you may have therein.
By uploading your User Contributed Data, you will retain all rights you may have therein but you hereby grant General Magic a worldwide, perpetual, irrevocable, nonexclusive, royalty-free, transferable license to use, upload, modify, distribute, sublicense, reverse engineer, decompile or disassemble and display such User Contributed Data or links thereto in any form and through any media.
If you believe that your work has been improperly copied and posted on Services, Apps, or General Magic Websites, such that it constitutes infringement, please provide us with the following information: (i) name, address, telephone number, email address and an electronic or physical signature of the copyright owner or of the person authorized to act on his/her behalf; (ii) a description of the copyrighted work that you claim has been infringed; (3) a description of where on Services, Apps, or General Magic Websites the material that you claim is infringing is located; (iii) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (5) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. These requirements must be followed to give General Magic legally sufficient notice of the infringement. Send copyright infringement complaints to email@example.com.
With respect to User Contributed Data of other users, General Magic grants you the right to use and modify and upload such User Contributed Data in accordance with these Terms and Conditions.
5.2 Your usage responsibilities and obligations
5.2.1 Your ownership of User Data and User Contributed Data
General Magic does not claim any ownership in the User Data or User Contributed Data. You affirm and warrant that you own or have the necessary licenses, rights, consents, and permissions to upload the User Data and User Contributed Data and to grant General Magic all the rights granted in these Terms and Conditions including the right to grant other users of the Services, Apps and General Magic Websites permission to use and modify and upload your User Contributed Data in accordance with these Terms and Conditions.
5.2.2 Restriction to alter Products, Services and Apps
Other than as permitted by applicable legislation or as expressly permitted through any technology or means made available by General Magic through the Products, Services and Apps, you will not, and will not allow any person to alter, distort or modify the Products, Services and Apps or any part thereof (either obtained directly via General Magic or via a Reseller), to analyse it by means of reverse engineering, to decompile or disassemble the Products, Services and Apps, to make other products derived from it, or to break or circumvent encryption or to allow or enable third parties to do so.
5.2.3 Reporting and refraining from misuse
Please be informed that General Magic assumes no responsibility for regularly monitoring any of the Services, Apps, and User Contributed Data. If you become aware of any misuse of or on the Services, Apps or User Contributed Data by any user, please report such misuse to General Magic by contacting General Magic support via email at firstname.lastname@example.org.
By accessing or using Services and Apps, and by uploading or using User Data or User Contributed Data, you agree to refrain from any improper behaviour which shall include but is not limited to the following:
i. Promotional use and payments: Use of Services and Apps and/or User Data or User Contributed Data for advertising, promotional purposes, marketing and/or sales purposes, posting a solicitation or any other commercial content whatsoever via the Services and Apps. Additionally, you also agree to refrain from directly or indirectly charging any third party for the use of the Services and Apps and/or User Contributed Data, or from accepting payment from a third party to this end. Furthermore, you agree to refrain from framing or mirroring any Services, Apps or User Contributed Data;
ii. Electronic assaults: taking any action on the Services and Apps designed to circumvent, interfere, disrupt, damage, disable, overburden or limit the functionality of any software or hardware, telecommunications equipment, (security) technology, Services and Apps. You agree not to post User Data or User Contributed Data that contains software viruses, programs or other computer code. Additionally you agree not to upload User Data or User Contributed Data which would involve sending or otherwise making available any material that contains viruses, Trojan horses, worms, time bombs, or any other similar software that may damage the operation of General Magic’s servers, computers or networks or a user’s Account, computers, networks or Product. Additionally, you also agree to refrain from using or launching any automated system, including but not limited to, “robots” and “spiders” that access Services and Apps in a manner that sends more messages or requests to the General Magic servers than any regular, private user of Services and Apps can reasonably be expected to produce in a similar period of time by using a conventional system. Additionally, you also agree to refrain from trying to gain access to or disrupt another user’s Accounts, computers or networks without authorization;
iii. Spamming or harassing: posting any User Contributed Data that involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing or “spamming”;
iv. Suggesting involvement of General Magic: displaying User Contributed Data in a manner that implies a relationship or affiliation with, sponsorship, or endorsement of the User Contributed Data by General Magic, that is misleading, offensive, illegal, harmful, tortuous, abusive, defamatory, obscene, vulgar, hateful, that infringes any third party right, is otherwise unlawful, or impairs General Magic’s intellectual property rights;
v. Mislead: uploading User Contributed Data that promotes information that you know is false or misleading;
vi. Harming, violating laws or rights of others: posting any User Contributed Data that infringes or violates anyone else’s rights, including copyright, trademark, patent, trade secret, privacy, publicity or other personal or proprietary rights. Additionally, you agree not to post any User Contributed Data, take any action or use Services and Apps in a way that violates any law or promotes illegal activities. Furthermore, you agree not to post content either directly or through a link, that is illegal, offensive, libellous, defamatory, infringing, inflammatory, deceptive, inaccurate, misleading, malicious, fraudulent, false, indecent, harmful, harassing, intimidating, threatening, hateful, abusive, vulgar, obscene, pornographic, violent, sexually explicit, invasive of privacy, publicity, intellectual property, proprietary or contractual rights, offensive in a sexual, racial, cultural, or ethnic context, will harm or threaten the safety of others, using or posting personal information (including telephone numbers, home or e-mail addresses, names or last names), photos or other images from or concerning other users or other third parties without their explicit consent, or is otherwise objectionable;
vii. Collecting or publishing data: please be aware of what personal information you share. You will refrain from obtaining or trying to obtain data through any Services, Apps or User Contributed Data except if General Magic intends to provide such data or makes it available to you. Furthermore, you agree not to upload any User Contributed Data containing restricted or password only access pages or hidden pages or images;
viii. Any other unlawful or unwanted use: using the Services, Apps and User Contributed Data in an unlawful way or in violation of any of these Terms and Conditions. Additionally, you also agree to refrain from violating any code of conduct or other guidelines which may be applicable to the Services, Apps and/or User Contributed Data.
5.2.4 User Interaction Disclaimer
You are solely responsible for your interactions with other people, whether online or in person. General Magic is not responsible or liable for any loss or damage resulting from any interaction with other users, persons you meet through Services and Apps or persons who find you because of information posted on, by or through Services and Apps. You agree to take reasonable precautions in all interactions with other users on Services and Apps, and conduct any necessary investigation before meeting another person. General Magic is under no obligation to become involved with any user dispute, but may do so in its discretion.
5.2.5 Physical Activity Notice Disclaimer
Services and Apps may include features that promote physical activity. Consider the risks involved and consult with your medical professional before engaging in any physical activity or using the Products or General Magic Services. General Magic is not responsible or liable for any injuries or damages you may sustain that result from your use of, or inability to use, the features of the Products, Services and Apps.
5.3 General Magic’s Rights
5.3.1 Communication and information
By creating an Account, you agree that General Magic may communicate with you by electronic means and that certain information about your use of Services and Apps, User Data and/or User Contributed Data may be shared with us.
5.3.2 Termination and alteration
General Magic reserves the right, with or without notice, to limit, alter, update, upgrade and supplement Services, Apps and User Contributed Data provided to you or made available to you through the use of a Product, Services and Apps (either obtained directly via General Magic or via a Reseller), unless the provision of such updates, upgrades or supplements forms an integral part of the Product, Services and Apps, as indicated by General Magic at the time of sale.
General Magic reserves the right to change the prices for Services, (either on single basis or subscription basis) and Apps, subject to giving you reasonable prior notice thereof (either via email, General Magic Websites, Services, Apps or otherwise). If such change will result in higher prices or otherwise works to your disadvantage (but not in case the higher prices result from higher government levies or taxes), you may terminate your subscription prior to and against the date such change comes into effect by sending an e-mail via email at email@example.com.
5.3.3 User Data and User Contributed Data
General Magic may, at its sole discretion, collect and process usage statistics related to the User Data and User Contributed Data to improve its products, Services and/or Apps, provided it has obtained the necessary consent from you.
With respect to User Data, in the event you upload such data you grant General Magic a worldwide, perpetual, irrevocable, royalty-free license to use and copy such User Data for General Magic’s own use – without displaying the User Data to any third party without your consent – in so far that this use is necessary for General Magic to be able to provide you with the ordered Product and/or requested Service.
With respect to User Contributed Data, you hereby grant General Magic the right to grant permission to other users to use, modify and upload any User Contributed Data that you may upload through the Services and Apps in accordance with these Terms and Conditions.
General Magic may use such information as it deems fit, anywhere in the world, without obligation for compensation, and free of moral rights, intellectual property rights and/or other proprietary rights in or to such information.
When notified that any User Contributed Data may violate any part of these Terms and Conditions or infringes any other third party right, General Magic may remove such User Contributed Data without prior notice. General Magic may terminate your access to and use of Services and Apps for uploading such User Contributed Data.
6 Termination and restrictions in case of breach by you
General Magic reserves the right in its sole discretion without prejudice to any other rights, to immediately – without notice of default being required and without liability to you or anyone else – terminate your Account and/or your subscriptions, delete your profile and any of your User Data and/or User Contributed Data, and restrict your use of all or any part of your Account, Services and Apps if (i) you fail to comply with or breach any material term of these Terms and Conditions, (ii) collection of payment for your Services and/or subscriptions should fail after a second attempt.
In such event, you must return or destroy all copies of the General Magic Content and all of its component parts.
Furthermore, upon termination, your licenses and rights as granted to you by General Magic will terminate simultaneously.
7 Third Party Materials and Third Party Websites
Products, Services and Apps may make use of Third Party Materials. The use of Third Party Material included in the Products, Services and Apps may be subject to other terms and conditions. The official copyright notices and specific licence conditions of these Third Party Materials are to be found in or via our website http://www.magicearth.com/third-party-licenses/
You hereby agree that the submission of any order implies that you have read and accepted the terms and conditions for any Third Party Material included in a Product, Service or App ordered, if any.
Where General Magic provides links and/or access to third-party websites, and/or Third Party Material it is only as a convenience to you, and the inclusion of any link or access does not imply an endorsement by General Magic of the third party site, or Third Party Material. General Magic is not responsible for Third Party Materials and the content of any third party websites, services or functionalities, any links contained in third- party websites or services, or any changes or updates to third-party websites or services.
8 Force Majeure
Force majeure means circumstances that impede the fulfilment of General Magic’s obligations under these Terms and Conditions which are not within General Magic’s reasonable control, including late and/or delayed deliveries and incomplete deliveries by General Magic and temporary or partial unavailability of your Account, Services, Apps, User Data and /or User Contributed Data caused by circumstances beyond General Magic’s reasonable control. In a force majeure situation all of General Magic’s obligations shall be suspended. Should the period in which General Magic cannot fulfil its obligations as a result of force majeure continue for longer than ninety (90) calendar days, both parties shall be entitled to dissolve the purchase agreement in writing and
General Magic shall be entitled to dissolve the agreement for the Services or Apps without there being an obligation to pay any compensation whatsoever arising out of or in connection with that dissolution.
In order to deliver the Products and Services to you, General Magic needs to use personal information about you. General Magic adheres to European Union and other local privacy and data protection laws. Based on this, General Magic will only use your information for the purpose and duration for which it was obtained. You can find our applicable privacy statement on www.magicearth.com/privacy
10 Third Party Rights
Third parties have no rights under applicable legislation to rely upon or to enforce any term of these Terms and Conditions but that does not affect any right or remedy of a third party which exists or is available apart from such applicable legislation.
General Magic reserves the right to make amendments or additions to these Terms and Conditions at any time. You can find the most recent version on the General Magic Websites. Please check the General Magic Websites regularly.
12 Entire agreement
These Terms and Conditions (including any addendum or amendment to them which is included with the accompanying package of the Product), and any other terms and conditions, if applicable, is the entire agreement between you and General Magic relating to the Products including the support services (if any), Services, Apps, User Data, and/or User Contributed Data and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the software or any other subject matter covered by these Terms and Conditions. To the extent that the terms of any General Magic policies or programs for support services conflict with the terms of these Terms and Conditions, the terms of these Terms and Conditions shall apply. If any provision of these Terms and Conditions is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
Any provisions in these Terms and Conditions which by their nature extend beyond the termination or expiration of any sale or license of your Account, Service, App, User Data, and User Contributed Data will remain in effect after termination of these Terms and Conditions.
This includes but is not limited to General Magic’s license to use, upload, modify, distribute, sublicense, reverse engineer, decompile or disassemble and display User Contributed Data generated by you.
If any provision of these Terms and Conditions is deemed to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. In case of any such invalid provisions, General Magic will present new terms and conditions in substitution for such invalid provisions. These new terms and conditions shall be interpreted, as regards their contents and effect, as closely as possible to the original text as written but in such a way that rights can indeed be derived from them.
15 Governing law and competent court
These Terms and Conditions and any disputes related to these Terms and Conditions or to the purchase and use of the Products, Services, Apps, User Data, User Contributed Data or otherwise are subject to Dutch law. The United Nations Convention on Contracts for the International Sales of Goods is hereby excluded from application to these Terms and Conditions.
The courts of Amsterdam, The Netherlands shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Terms and Conditions (including any non- contractual disputes or claims). This clause shall not affect your rights under mandatory local law, including the right, where applicable, to bring any dispute or claim arising out of or in connection with these Terms and Conditions in the courts of your home jurisdiction or in other courts which have jurisdiction to hear such disputes.
The English version of these terms and conditions is the prevailing version for your purchase. Any translations are provided for convenience only.
17 Questions and complaints
Should you have any questions, suggestions or complaints concerning your order, your purchase, these Terms and Conditions, or if you desire to contact General Magic for any reason, please do so by email at firstname.lastname@example.org. General Magic will take careful note of your email and will process any complaints as soon as possible.
Account: your General Magic account created via a Platform or an App.
App: any mobile apps developed by General Magic, downloadable via a Reseller.
Built-in Device: any Product built-in into a vehicle and sold via a third party to you.
General Magic Content: all information, text, files, scripts, graphics, photos, sounds, music, videos, interactive features, functionalities or other similar materials, made available by General Magic.
General Magic Websites: all websites made available by General Magic, which are accessible by you without prior registration or logging in. including, but not limited to www.magicearth.com
Platform: any platforms made available by General Magic via which you will be able to receive Services.
Product: any hardware and accessories
Reseller: any online or offline reseller selling Products, Built-in
Devices, Services and Apps including but not limited to third party (car) dealers and third party app stores.
Service: any paid or free-of-charge service provided by General Magic, by electronic means, either on subscription basis, continuous basis or single basis, including but not limited to:
– maps (either pre-installed or downloaded)
– safety camera information
– traffic information
– points of interest
– weather information
– General Magic Content
Terms and Conditions: these General Terms and Conditions of General Magic B.V., a private company with limited liability, having its corporate seat in De Smalle Zijde 3, NL- 3903 LL Veenendaal, The Netherlands, and registered in the trade register of the Chamber of Commerce in the Netherlands under number 30127362, and holding the VAT number NL 804316028B02.
Third Party Material: content, software codes, data, information, functionality, other content and algorithms licensed or otherwise made available by others than General Magic.
User Data: content that you upload on or via an App, a Platform, a Product, or a Service, including communications, materials, information, data, opinions, photos, profiles, messages, notes, website links, music, videos, designs, graphics, sounds, and any other content, except to the extent the intellectual property rights relating to the aforementioned content are with General Magic or the aforementioned content is otherwise owned by General Magic, its affiliates or licensors.
User Contributed Data: any User Data contributed to General Magic via the use of an App, a Platform, a Product or a Service, but only in case General Magic has the right to use this data according to your approval, the relevant product information, these Terms and Conditions, and/or General Magic’s privacy statement made available to you by General Magic.