1. The user’s relationship with MAGICMOTORSPORT, its affiliates, or partners
1.1 Use of MAGICMOTORSPORT products, software, services and websites (referred to collectively as the “Services” in this document and excluding any services provided by MAGICMOTORSPORT under a separate written agreement) is subject to the terms of a legal agreement between the user and MAGICMOTORSPORT. “MAGICMOTORSPORT” is defined as MAGICMOTORSPORT di Skutkiewicz Bogdan Jan, whose principal place of business is at Via Roccavoli 2, 90049 Terrasini (PA) ITALY and its subsidiaries, affiliates and partners. This document defines the legal agreement and sets out the terms of the same agreement.
1.2 Unless otherwise agreed to in writing with MAGICMOTORSPORT, the user’s agreement with MAGICMOTORSPORT will always include the terms and conditions set out in this document. These are referred to below as the “Universal Terms”.
1.3 The agreement with MAGICMOTORSPORT will also include the terms of any legal notices applicable to the Services that MAGICMOTORSPORT may issue from time to time, in addition to the Universal Terms. All of these are referred to as the “Additional Terms”. Where Additional Terms apply to a Service, these will be accessible for the user to read either within, or through their use of, that same Service.
1.4 The Universal Terms, together with the Additional Terms, form a legally binding agreement between the user and MAGICMOTORSPORT in relation to use of the Services. It is important that the user take the time to read them carefully. Collectively, this legal agreement is referred to below as the “Terms”.
1.5 If there is any contradiction between the Additional Terms and the Universal Terms, then the Additional Terms shall take precedence in relation to that Service.
2. Accepting the Terms
2.1 In order to use the Services, the user must first agree to the Terms. The Services may not be used if the Terms are not accepted.
2.2 The user can accept the Terms by:
(a) clicking the box to accept or agree to the Terms where this option is made available to them by MAGICMOTORSPORT in the user interface for any Service; or
(b) by actually using the Services. In this case, the user understands and agrees that MAGICMOTORSPORT, its affiliates, or partners will treat use of the Services as acceptance of the Terms from that point onward.
2.3 The user may not use the Services and may not accept the Terms if:
(a) the user is not of legal age to form a binding contract with MAGICMOTORSPORT, or
(b) the user is a person barred from receiving the Services under the laws of Italy or other countries including the country in which the user is a resident or from which the Services are being used.
2.4 Before continuing further, the user should print off or save a copy of the Universal Terms for their records.
3. Language of the Terms
3.1 Where MAGICMOTORSPORT has provided the user with a translation of the Italian language version of the Terms, the user agrees that the translation is provided for convenience only and that the Italian language version of the Terms will govern the user’s relationship with MAGICMOTORSPORT.
3.2 If there is any contradiction between the Italian language version of the Terms and the translated version, then the Italian language version shall take precedence.
4. Provision of the Services by MAGICMOTORSPORT, its affiliates, or partners
4.1 MAGICMOTORSPORT has subsidiaries and affiliated legal entities around the world (“Subsidiaries and Affiliates”). These entities may provide the Services to the user on behalf of MAGICMOTORSPORT. The user acknowledges and agrees that the Subsidiaries and Affiliates will be entitled to provide the Services to them.
4.2 MAGICMOTORSPORT is under constant innovation in order to provide the best possible experience for its users. The user acknowledges and agrees that the form and nature of the Services that MAGICMOTORSPORT provides may change from time to time without prior notice.
4.3 As part of this continual innovation, the user acknowledges and agrees that MAGICMOTORSPORT may (permanently or temporarily) stop providing the Services (or any features within the Services) to the user at MAGICMOTORSPORT’s sole discretion, granting the user a 24-hour notice by e-mail. The user may suspend, interrupt and/or terminate use of the Services at any time. It is not necessary to specifically inform MAGICMOTORSPORT of a suspension, interruption or termination of the user’s use of the Services.
4.4 The user acknowledges and agrees that if MAGICMOTORSPORT disables the user’s access to the user’s account for imperative circumstances (for example insolvency, improper use of the Services etc.), the user may be prevented from accessing the Services, the account details or any files or other content contained in the user’s account.
4.5 The user acknowledges and agrees that while MAGICMOTORSPORT currently has set a fixed upper limit on the number of Green Coins available for use through the selected Services at 30 (thirty) coins monthly for MAGP1.1M, MAGP1.2M and MAGP1.12M tool owners and 0 coins for other tool owners, such fixed upper limit may be changed by MAGICMOTORSPORT at any time, at MAGICMOTORSPORT‘s discretion.
4.6. MAGICMOTORSPORT products and software have separate costs and the purchase of the hardware does not automatically entail the purchase of the software. Upon receipt of the purchased product by the User, an email must be sent to MAGICMOTORSPORT to request activation of the software. The user will receive a link by e-mail from which it is possible to download the software through the MMS Helpdesk; the duration of the validity of the Helpdesk subscription is 365 days from the moment of activation.
4.7 The user acknowledges and agrees that MAGICMOTORSPORT requires all users to pay an annual subscription fee. This fee will be due to MAGICMOTORSPORT one (1) year after the activation of a new MAGPro2/FLEX tool and will vary according to the model of the tool. Pricing for the cost of the subscription is shown on the MAGICMOTORSPORT website. Failure to renew this subscription will result in limited access to the functions of the tool and will limit the Limited Lifetime Warranty offered by MAGICMOTORSPORT on the tool to twenty-four (24) months from the original date of activation. In case of a late renewal of the subscription, the subsequent renewal of the account will give the user the possibility to use the software up to what would have been the expected expiration if the account had been renewed correctly, the expired period will be included in the 365 days that make up a year’s subscription.
5. Use of the Services
5.1 In order to access certain Services, the user may be required to provide information about a vehicle/ECU model (such as identification or other details) as part of the registration process for the Service, or as part of the continued use of the Services. The user agrees that any information given to MAGICMOTORSPORT will always be accurate, correct and up to date.
5.2 The user agrees to use the Services only for purposes that are permitted by (a) the Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding vehicles & public road laws).
5.3 The user agrees not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by MAGICMOTORSPORT, unless they have been specifically allowed to do so in a separate written agreement with MAGICMOTORSPORT. The user specifically agrees not to access (or attempt to access) any of the Services through any automated means (including the use of scripts or web crawlers) and shall ensure not to share access to these Services with third party users.
5.4 The user agrees not to engage in any activity that interferes with or disrupts the Services or the servers and networks which are connected to the Services.
5.5 Unless the user has been specifically permitted to do so in a separate written agreement with MAGICMOTORSPORT, they agree not to reproduce, duplicate, copy, sell, trade or resell the Services or result of the Services for any purpose.
5.6 The user agrees to be solely responsible for (and that MAGICMOTORSPORT has no responsibility to them or to any third party for) any breach of the obligations established under the Terms and for the consequences (including any loss or damage which MAGICMOTORSPORT may suffer) of any such breach.
5.7 If the Services should require the user to send an ECU to the MAGICMOTORSPORT Head Office for repairs or service, please be aware of the following conditions:
(a) All items will be shipped at the expense and risk of the user. It is the user’s responsibility to insure the package. MAGICMOTORSPORT is not responsible for packages in transit to and from the Head Office.
(b) All items sent to MAGICMOTORSPORT will be subjected to inspection on receipt and will be evaluated by our technicians. All ECUs are repaired or serviced by our highly-trained technicians and are covered by a 100% satisfaction guarantee. The shipping costs for the return of the control unit or the replacement of a tool under warranty, will be the sole responsibility of MAGICMOTORSPORT. By carrying out this type of service, the user agrees not to pursue any legal action or personal demand for a sum that is greater than the monies paid to MAGICMOTORSPORT for the service.
(c) MAGICMOTORSPORT is not responsible for the removal, installation and use of a re-manufactured item and strongly suggests that the customer should observe standard safety procedures while handling motor vehicles and electrical equipment.
6. Passwords and Account Security
6.1 The user agrees and understands to be responsible for maintaining the confidentiality of passwords associated with any account used to access the Services.
6.2 Accordingly, the user agrees to be solely responsible to MAGICMOTORSPORT for all activities that occur from their registered account.
6.3 If the user becomes aware of any unauthorized use of their password or of their account, they agree to notify MAGICMOTORSPORT immediately at email@example.com. In the event of theft or loss, the User must communicate this event to MAGICMOTORSPORT via e-mail, or via the official MAGICMOTORSPORT website. The User must also attach a copy of the police report on the event that has trespassed and will be eligible to repurchase the MAGPro2/FLEX tool at the cost of the sole hardware.
7. Privacy and Personal Information
8. Content in the Services
8.1 The user agrees and understands that all information (such as data files, written text, computer software, photographs, videos or other images) they may have access to as part of, or through their use of, the Services are the sole responsibility of the individual from which such content originated. All such information is referred to below as the “Content”.
8.2 The user should be aware that the Content presented as part of the Services, is protected by intellectual property rights which are owned by MAGICMOTORSPORT (or by other persons or companies on their behalf). The user may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless they have been granted explicit permission to do so by MAGICMOTORSPORT or by the owners of that Content, in a separate written agreement.
8.3 MAGICMOTORSPORT reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service.
8.4 The user agrees and understands that all Services are used at their own risk.
8.5 The user agrees to be solely responsible for (and that MAGICMOTORSPORT has no responsibility either to them or to any third party for) any Content created while using the Services and for the consequences of their actions (including any loss or damage which MAGICMOTORSPORT may suffer) by doing so.
9. Proprietary Rights
9.1 The user acknowledges and agrees that MAGICMOTORSPORT (or MAGICMOTORSPORT licensors) owns all legal rights, titles and interests in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). The user further acknowledges that the Services may contain information which is designated confidential by MAGICMOTORSPORT and that they must not disclose this information without MAGICMOTORSPORT’s prior written consent.
9.2 Unless the user has otherwise agreed in writing with MAGICMOTORSPORT, nothing in the Terms gives them a right to use any of MAGICMOTORSPORT’s trade names, trademarks, service marks, logos, domain names and/or other distinctive brand features.
9.3 The Terms also do not grant the User the right to use trademarks or any other intellectual property rights – even for purely descriptive purposes – owned or belonging to third parties. If the user has been given the explicit right to use any of these brand features in a separate written agreement with MAGICMOTORSPORT, then they agree that their use of such features shall be in compliance with that agreement, any applicable provisions of the Terms, and MAGICMOTORSPORT ‘s brand use guidelines as updated from time to time.
9.4 Other than the limited license set forth in Section 11, MAGICMOTORSPORT acknowledges and agrees that it obtains no right, title or interest from the user (or their licensors) under these Terms in or to any Content that they submit through the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless the user has agreed otherwise in writing with MAGICMOTORSPORT, they agree to be responsible for protecting and enforcing those rights and that MAGICMOTORSPORT has no obligation to do so on their behalf.
9.5 The user agrees not to remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services.
9.6 Unless they have been expressly authorized to do so in writing by MAGICMOTORSPORT, the user agrees that in use of the Services, they will not use any trademark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
10. License from MAGICMOTORSPORT, its Affiliates, or Partners
10.1 MAGICMOTORSPORT gives the user a personal, worldwide, non-assignable and non-exclusive license to use the software provided to them by MAGICMOTORSPORT as part of the Services as provided to them by MAGICMOTORSPORT (referred to as the “Software” below). This license is for the sole purpose of enabling the user to use and enjoy the benefits of the Services as provided by MAGICMOTORSPORT, in the manner permitted by the Terms.
10.2 The user may not (and may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless they have been explicitly allowed to do so by MAGICMOTORSPORT in writing.
10.3 Unless MAGICMOTORSPORT has given the user explicit written permission to do so, they may not assign (or grant a sub-license of) their rights to use the Software, grant a security interest in or over their rights to use the Software, or otherwise transfer any part of their rights to use the Software.
11. The User’s Content License
11.1 The user retains copyright and any other rights already held in the Contents submitted through the Services. By submitting the content, the user gives MAGICMOTORSPORT a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content submitted by the user through the Services. This license is for the sole purpose of enabling MAGICMOTORSPORT to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
11.2 The user understands and agrees that MAGICMOTORSPORT, in performing the required technical steps to provide the Services to its users, may (a) transmit or distribute this Content over various public networks and in various media; and (b) make such changes to the Content as is necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. The user agrees that this license shall permit MAGICMOTORSPORT to take these actions.
11.3 The user confirms and warrants to MAGICMOTORSPORT that they have all the rights, power and authority necessary to grant the above mentioned license.
12. Software Updates
12.1 The Software may automatically download and install updates from time to time from MAGICMOTORSPORT. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. The user agrees to receive such updates (and permit MAGICMOTORSPORT to deliver them) as part of their use of the Services.
13. Ending a Relationship with MAGICMOTORSPORT, its Affiliates, or Partners
13.1 The Terms will continue to apply until terminated by either the user or MAGICMOTORSPORT as set out below.
13.2 If the user wishes to terminate their legal agreement with MAGICMOTORSPORT, they may do so by
(a) notifying MAGICMOTORSPORT at any time and
(b) closing the accounts for all of the Services in use, where MAGICMOTORSPORT has made this option available. Notice should be sent, in writing, to the MAGICMOTORSPORT Head Office address which is set out at the beginning of these Terms.
13.3 MAGICMOTORSPORT may at any time terminate its legal agreement with the user if:
(a) they have breached any provision of the Terms (or have acted in a manner which clearly shows that they do not intend to, or are unable to comply with the provisions of the Terms); or
(b) MAGICMOTORSPORT is required to do so by law (for example, where the provision of the Services to the user is, or becomes, unlawful); or
(c) the partner with whom MAGICMOTORSPORT has offered the Services to the user has terminated their relationship with MAGICMOTORSPORT or ceased to offer the Services to the user; or
(d) MAGICMOTORSPORT is transitioning to no longer providing the Services to users in the country in which the user is a resident or from which they use the service; or
(e) the provision of the Services to the user by MAGICMOTORSPORT is, in MAGICMOTORSPORT’s opinion, no longer commercially viable.
13.4 Nothing in this Section shall affect MAGICMOTORSPORT ‘s rights regarding the provision of Services under Section 4 of the Terms.
13.5 When these Terms come to an end, all of the legal rights, obligations and liabilities that the user and MAGICMOTORSPORT have benefited from, been subject to (or which have accrued over time while the Terms have been in force) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of paragraph 20.7 shall continue to apply to such rights, obligations and liabilities indefinitely.
14. Exclusion of Warranties
14.1 Nothing in these Terms, including sections 14 and 15, shall exclude or limit MAGICMOTORSPORT’s warranty or liability for losses which may not be lawfully excluded or limited by applicable law. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Accordingly, only the limitations which are lawful in the jurisdiction of the user will apply to them and MAGICMOTORSPORT’s liability will be limited to the maximum extent permitted by law.
14.2 The user expressly understands and agrees that their use of the Services is at the sole risk of the user and that the Services are provided “as is” and “as available.”
14.3 In particular, MAGICMOTORSPORT, its subsidiaries and affiliates, and its licensors do not represent or warrant to the user that:
(a) the user’s use of the Services will meet their requirements,
(b) the user’s use of the Services will be uninterrupted, timely, secure or free from error,
(c) any information obtained by the user as a result of their use of the Services will be accurate or reliable, and
(d) that defects in the operation or functionality of any software provided to the user as part of the Services will be corrected.
14.4 Any material downloaded or otherwise obtained through the use of the Services is done at the discretion and risk of the user who will be solely responsible for any damage or loss of data that results from the download of any such material.
14.5 No advice or information, whether oral or written, obtained by the user from MAGICMOTORSPORT or through or from the Services shall create any warranty not expressly stated in the terms.
14.6 MAGICMOTORSPORT further expressly disclaims all warranties and conditions of any kind, whether expressed or implied, including but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement.
15. Limitation of Liability
15.1 Subject to overall provision in paragraph 14.1 above, the user expressly understands and agrees that MAGICMOTORSPORT, its subsidiaries and affiliates, and its licensors, and their respective directors, officers, employees, contractors and agents, shall not be liable for:
(a) any direct, indirect, incidental, special consequential or exemplary damages which may be incurred by the user, however caused and under any theory of liability. This shall include, but not be limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss;
(b) Any loss or damage which may be incurred by the user, including but not limited to loss or damage as a result of:
(I) Any reliance placed by the user on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between the user and any advertiser or sponsor whose advertising appears on the services;
(II) any changes which MAGICMOTORSPORT may make to the Services, or for any permanent or temporary cessation in the provision of the Services (or any features within the Services);
(III) the deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through the user’s use of the Services;
(IV) the user’s failure to provide MAGICMOTORSPORT with accurate account information;
(V) failure of the user to keep their password or account details secure and confidential;
15.2 The limitations on MAGICMOTORSPORT’s liability to the user in paragraph 15.1 above shall apply whether or not MAGICMOTORSPORT has been advised of or should have been aware of the possibility of any such losses arising.
15.3 If, despite the limitations set out above, MAGICMOTORSPORT becomes liable to the user in respect of the Services, that liability will be limited to the fees paid to MAGICMOTORSPORT for the Services
16. Copyright and Trademark Policies
16.1 It is MAGICMOTORSPORT’s policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property laws (including, in the United States, the Digital Millennium Copyright Act) and to terminate the accounts of repeat offenders.
17.1 Some Services may be supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored in the Services, queries made through the Services or other information.
17.2 The manner, mode and extent of advertising by MAGICMOTORSPORT in the Services is subject to change without specific notice to the user.
18. Other Content
18.1 The Services may include hyperlinks to other websites or content or resources. MAGICMOTORSPORT has no control over websites or resources which are provided by companies or persons other than MAGICMOTORSPORT.
18.2 The user acknowledges and agrees that MAGICMOTORSPORT is not responsible for the availability, functionality or content of any such external site or resource and does not endorse any advertising, product or other materials on or available from such websites or resources.
18.3 The user acknowledges and agrees that MAGICMOTORSPORT is not liable for any loss or damage which may be incurred by the user as a result of the availability of these external sites or resources, or as a result of any reliance placed by the user on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such websites or resources.
19. Changes to the Terms
19.1 MAGICMOTORSPORT may make changes to the Universal Terms or Additional Terms from time to time. Any new Additional Terms will be made available to the user from within, or through, the affected Services.
19.2 The user understands and agrees that if they use the Services after the date on which the Universal Terms or Additional Terms have changed, MAGICMOTORSPORT will treat their use as acceptance of the updated Universal Terms or Additional Terms.
20. General Legal Terms
20.1 In the user’s use of the Services, they may (as a result of, or through their use of the Services) use a service or download a portion of software, or purchase goods, which are provided by a third person or company. Use of these third party services, software or goods may be subject to separate terms between the user and the concerned company or person. If so, the Terms do not affect the legal relationship with these third party companies or individuals.
20.2 The Terms constitute the entire legal agreement between the user and MAGICMOTORSPORT and govern the use of the Services (excluding any services which MAGICMOTORSPORT may provide to the user under a separate written agreement), and completely replace any prior agreements between the user and MAGICMOTORSPORT in relation to the Services.
20.3 The user agrees that MAGICMOTORSPORT may provide them with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services.
20.4 The user agrees that if MAGICMOTORSPORT does not exercise or enforce any legal right or remedy what is contained in the Terms (or what MAGICMOTORSPORT has the benefit of under any applicable law), this will not be taken to be a formal waiver of MAGICMOTORSPORT’s rights and that those rights or remedies will still be available to MAGICMOTORSPORT.
20.5 If any court of law, having the 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. The remaining provisions of the Terms will continue to be valid and enforceable.
20.6 The user acknowledges and agrees that each member of the group of companies of which MAGICMOTORSPORT is the parent shall be third-party beneficiaries to the Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Terms which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third-party beneficiaries to the Terms.
20.7 The Terms, and the user’s relationship with MAGICMOTORSPORT under the Terms, shall be governed by the laws of Italy without regard to its conflict of law provisions. The user and MAGICMOTORSPORT agree to submit to the exclusive jurisdiction of the courts located within the Palermo province (IT). Notwithstanding this, the user agrees that MAGICMOTORSPORT shall be allowed to apply for injunctive relief (or an equivalent type of urgent legal relief) in any jurisdiction.
Terms of Service Last Amended: May 25, 2018
MAGICMOTORSPORT di Skutkiewicz Bogdan Jan
Via Roccavoli, 2 90049 Terrasini (PA) ITALY