Terms of Use

Please read these terms of use carefully before using Magic Backup products and services

This Agreement is between Magic Softworks, Inc. ("Magic Softworks") and you, as an authorized user of Magic Softworks products and services, and governs the terms and conditions of your use of Magic Softworks products and services ("Terms of Use"). This Agreement, together with any operating rules, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to time by Magic Softworks (collectively, the "Agreement"), constitutes the entire agreement between Magic Softworks and you regarding Magic Softworks Services, and supersedes all prior agreements between the parties regarding the subject matter of this Agreement.

You Must Agree to these Terms of Use to Use Magic Softworks Products and Services
By using or registering for a Magic Softworks Product (defined below), you agree to these terms and conditions ("Terms of Use") and the Magic Softworks Privacy Policy. You agree to accept notices electronically. Each time you use a Magic Softworks Product, you reaffirm your acceptance of the then-current Terms of Use. If you do not wish to be bound by these Terms of Use, you may discontinue using the Magic Softworks Products. You cannot use or sign up for Magic Softworks Products until you have accepted these Terms of Use.

Definition of Terms

• a. Magic Softworks, Inc. is referred to herein as "Magic Softworks," "we," "us," or "our."
• b. You, as the user, are referred to herein as "you," "user," "subscriber," "client," or "customer."
• c. Magic Softworks Products. For purposes of these Terms of Use, the term "Magic Softworks Products" shall mean Magic Backup software ("Magic Backup Software" or "Software", whether preinstalled, on a medium, or offered by download), Magic Backup services, Magic Backup websites (including, without limitation, www.MagicBackup.com) and all other software, features, tools, websites and services provided by Magic Softworks, Inc.

Modifications to the Terms of Use
In the event that Magic Softworks makes material changes to these Terms of Use, all current Magic Softworks customers and trial users will be notified via email at least 30 days before the modified terms of use go into effect. Magic Softworks will email users at the email address(es) provided by each user and is not responsible for invalid addresses or undeliverable email. The modified Terms of Use will be posted on our website at least 30 days in advance of the effective date. You agree to the new posted Terms of Use by continuing your use of the Magic Softworks Products. If you do not agree with the modified Terms of Use, your only remedy is to discontinue using Magic Softworks Products and cancel your registration.

Requirements for Use or Registration of Magic Softworks Products
The Magic Softworks Products are intended for general consumer use. You represent and warrant that you have adequate legal capacity to enter into binding agreements such as these Terms of Use. Magic Softworks Products may require the user to register and provide certain personal information to Magic Softworks, such as name, e-mail address, gender, date of birth, zip code (the "Personal Information"). If you register for any Magic Softworks Product, you agree to provide accurate and complete Personal Information and you agree to keep such information current.

Registered User Information
The Magic Softworks Privacy Policy explains how Magic Softworks collects and uses Personal Information. You consent to Magic Softworks's use of your Personal Information under the terms of the Magic Softworks Privacy Policy.

Lawful Use of Magic Softworks Products
You may use Magic Softworks Products for lawful purposes only.

Description of Magic Softworks Products
Magic Softworks is in the business of providing Internet-based backup products and services, the Magic Softworks Products. We want you to have the best possible experience in dealing with Magic Softworks and using Magic Softworks Products. Magic Softworks offers the Magic Softworks Products through its website www.MagicBackup.com and through its retail partners and other vendors. Magic Softworks Products may backup specific file types, such as photos, music, home office application files, and other file types. Magic Softworks Products operate automatically with little user involvement, and work to back up your files whenever your computer is connected to the Internet.

Changes to the Service
Magic Softworks has the right at any time to change, modify, add to or discontinue or retire any aspect or feature of the Magic Softworks Products including, but not limited to, the software, hours of availability, equipment needed for access or use, the maximum disk space that will be allotted on Magic Softworks servers on your behalf either cumulatively or for any particular service or the availability of Magic Softworks Products on any particular device or communications service. Magic Softworks has no obligation to provide you with notice of any such changes.

Magic Softworks License to You
Magic Softworks and its vendors grant you a personal, non-exclusive, non-transferable limited license to install the software and services distributed by Magic Softworks in object code form only on any computer or device from which you wish to access the Magic Softworks service for the sole and exclusive purposes of connecting to and using the Magic Softworks Products in accordance with these Terms of Use. You may not sub-license, or charge others to use or access the Magic Softworks Service. Magic Softworks occasionally will provide automatic upgrades to improve your Magic Softworks experience, although these upgrades may not be consistent across all platform and devices. You agree to accept and to take no action to interfere with such automatic upgrades, scanning, and related services.

You may not sell, assign, grant a security interest in or otherwise transfer any right in the Software or incorporate it (or any portion of it) into another product. You may not copy the Software. You may not translate, reverse-engineer or reverse-compile or decompile, disassemble, make derivative works from, or otherwise attempt to discover any source code in the Software. You may not modify the Software or use it in any way not expressly authorized by these Terms of Use. You may not obtain the communications protocol for accessing the Magic Softworks service, the Magic Softworks Products, or any other Magic Softworks services. Finally, you may not authorize or assist any third party to do any of the things described in this paragraph. You understand that Magic Softworks' introduction of various technologies may not be consistent across all platforms and that the performance and features offered by Magic Softworks may vary depending on your computer and other equipment.

You agree to use install and use a paid subscription to any of the Magic Softworks Products on only one device at a time. If you wish to protect multiple devices, each requires a separate paid subscription.

Restrictions on Access to or Use of Magic Softworks Products
You may access Magic Softworks Products only through the interfaces and protocols provided or authorized by Magic Softworks. You agree that you will not access Magic Softworks Products through unauthorized means, such as unlicensed software clients. Certain Magic Softworks Products backup only certain types of files. You agree not to circumvent these limitations in any way, including but not limited to, changing file extensions or head information.

Communications
You are responsible for obtaining your own Internet access, such as maintaining all telephone, computer hardware and other equipment needed for access to and use of the Magic Softworks Products, and all charges related thereto. Any telephone or other communications charges incurred by you to access Magic Softworks are your responsibility.

Termination and Fair Use Policy
YOUR USE OF MAGIC SOFTWORKS PRODUCTS IS SUBJECT TO MAGIC SOFTWORKS' "TERMINATION AND FAIR USE POLICY." THIS POLICY IS INTENDED TO ALLOW MAGIC SOFTWORKS TO DENY SERVICE TO ABUSERS. USERS WHO ARE DEEMED TO BE "ABUSERS", IN MAGIC SOFTWORKS' SOLE DISCRETION, MAY BE NOTIFIED PRIOR TO SUSPENSION OR TERMINATION OF THEIR ACCOUNTS, HOWEVER, MAGIC SOFTWORKS RESERVES THE RIGHT TO TERMINATE OR SUSPEND SUCH ACCOUNTS WITHOUT PRIOR NOTICE IN THE EVENT OF A POLICY VIOLATION. ANY FAILURE BY MAGIC SOFTWORKS TO ENFORCE THIS POLICY WILL NOT PRECLUDE US FROM ENFORCING IT AT ANYTIME IN THE FUTURE, WHETHER FOR PAST OR CURRENT VIOLATIONS.

Software Data Collection and Privacy Policy
Magic Softworks needs to collect limited amounts of basic data about files on your computer. None of this data is shared with third parties. Magic Softworks' software routinely scans your computer in order to detect new, modified or deleted data files that require our software to take further action to complete backup and restore operations. Magic Softworks' software also catalogs the number and total storage size of various file types on your computer. Magic Softworks' software inspects file headers and related information in order to confirm that each file's type is properly represented by its file extension. Magic Softworks will never examine the contents of your files for any other purpose, and no information about a file's content, other than its type (e.g. digital photos, word processing document, etc.) and size, will ever be collected, tracked or stored by Magic Softworks. Contents of all files are encrypted before they are transmitted to Magic Softworks' data center. By using Magic Softworks Products, you expressly agree to allow Magic Softworks to collect and use data as specified in our "Software Data Collection and Privacy Policy."

Disclaimer of Warranty; Limitation of Liability
DISCLAIMER OF WARRANTIES. YOUR USE OF MAGIC SOFTWORKS PRODUCTS AND SOFTWARE IS AT YOUR SOLE RISK. THE MAGIC SOFTWORKS PRODUCTS AND SOFTWARE ARE PROVIDED "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. SPECIFICALLY, MAGIC SOFTWORKS AND ITS VENDORS DISCLAIM IMPLIED WARRANTIES THAT THE MAGIC SOFTWORKS PRODUCTS AND SOFTWARE ARE MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. MAGIC SOFTWORKS AND ITS VENDORS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MAGIC SOFTWORKS PRODUCTS AND SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE MAGIC SOFTWORKS PRODUCTS AND SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE MAGIC SOFTWORKS PRODUCTS AND SOFTWARE WILL BE CORRECTED. MAGIC SOFTWORKS AND ITS VENDORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MAGIC SOFTWORKS PRODUCTS, SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. MAGIC SOFTWORKS PROVIDES THE MAGIC SOFTWORKS PRODUCTS AND SOFTWARE ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO ACCESS OR USE THE MAGIC SOFTWORKS PRODUCTS AT TIMES OR LOCATIONS OF THEIR CHOOSING, OR THAT MAGIC SOFTWORKS WILL HAVE ADEQUATE CAPACITY FOR THE MAGIC SOFTWORKS PRODUCTS AS A WHOLE.

LIMITATION OF LIABILITY. MAGIC SOFTWORKS' ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH MAGIC SOFTWORKS (INCLUDING WITHOUT LIMITATION YOUR USE OF THE SOFTWARE OR MAGIC SOFTWORKS PRODUCTS) IS TO DISCONTINUE YOUR USE OF THE MAGIC SOFTWORKS PRODUCTS AND SOFTWARE. MAGIC SOFTWORKS AND ITS VENDORS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE ARISING FROM YOUR USE OF THE MAGIC SOFTWORKS PRODUCTS, SOFTWARE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OR REGISTRATION WITH MAGIC SOFTWORKS PRODUCTS AND SOFTWARE. THESE EXCLUSIONS FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF MAGIC SOFTWORKS HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, MAGIC SOFTWORKS AND ITS VENDORS' LIABILITY IN SUCH STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

Indemnification
You agree to defend, indemnify and hold harmless Magic Softworks, its vendors, and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys' fees, arising out of your use of the Magic Softworks Products. Magic Softworks reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, and only in such event, shall you have no further obligation to provide indemnification for Magic Softworks in that matter.

Trademarks
All trademarks appearing on the Magic Softworks Products are the property of their respective owners, including, without limitation, Magic Softworks, Inc. and Magic Backup.

Miscellaneous
The provisions of these Terms of Use addressing disclaimers of representations and warranties, limitation of liability, indemnity obligations, intellectual property and governing law shall survive the termination of these Terms of Use and your registration with the Magic Softworks Products.

Updated 5/19/08