TERMS AND CONDITIONS
1. SUBSCRIPTION AGREEMENT
1.1 The following Terms and Conditions govern each and every Subscription Agreement entered into between ThoughtBomb Studios LLC. dba EchoMTG, a Delaware corporation (the “Company”) and its Subscribers. Accordingly, each prospective Subscriber should ensure that it has read all of the following Terms and Conditions, and ensure that it understands and agrees to be bound by such Terms and Conditions, prior to entering into a Subscription Agreement with the Company.
1.2 A Subscription Agreement shall only come into force once a prospective Subscriber has (i) provided to the Company all of the information required of it during the Subscription Process, and (ii) clicked on the "I Agree" button (thereby indicating its agreement to be bound by these Terms and Conditions in exclusion of all other terms and conditions save as expressly agreed with the Company in writing (acting by a duly authorized officer).
2. THE SERVICE
2.1 Each Subscriber shall be entitled to use the Service with effect from the Commencement Date subject to payment of the Subscription Fee and otherwise complying with the Subscription Agreement. The Subscriber shall have a limited right to use the Service (including any Report) in accordance with these Terms and Conditions and for the duration of the Term. In particular, but without limit, the Subscriber shall not:
2.1.1 attempt to assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Service (including any Report) or use any part of the Service (including any Report) on behalf of any third party or make the Service (including any Report) available to any third party; or
2.1.2 copy, distribute, reproduce, transmit or disseminate in any form any or all of the information comprising the Service (including any Report) to any other person, firm, company or organization; and
2.1.3 the Subscriber shall indemnify The Company in full against all losses and costs suffered (indirectly or directly) by The Company as a consequence of any breach of sub-Clauses 2.1.1 to 2.1.2.
2.2 Any enhancements or supplements which are made to the Service from time to time by the Company (in its discretion) shall be subject to these Terms and Conditions.
3. LIMITATIONS ON USE
3.1 Only a Subscriber may access a Service at any time using the Subscriber’s user name or password, unless we agree otherwise. If the Subscriber is a firm, company or organization, only a single Authorized User may access a Service at any time using the Subscriber’s user name or password, unless we agree otherwise.
3.2 The Subscriber may occasionally forward emailed articles from a Service to a few individuals, without charge. The Subscriber is not permitted to use this service for the purpose of regularly providing other users with access to content from a Service.
3.3 The Subscriber agrees not to modify, copy, distribute, display, perform, reproduce, publish, license, create derivative works from, transfer, retransmit, or sell any information, software, products or services obtained from the Service or a Report, except as permitted in 3.2.
3.4 The Subscriber agrees not to use any computerized or automatic mechanism, including without limitation, any Web scraper, spider, or robot, to access, extract or download any information, including without limitation, any pricing or valuation data, from the Service or a Report.
3.5 The Subscriber agrees not to use the Services for any unlawful purpose. We reserve the right to terminate or restrict the Subscriber’s access to a Service if, in our opinion, the Subscriber’s use of the Service may violate any laws, regulations or rulings, infringe upon another person's rights or violate the terms of this Agreement. Also, we may refuse to grant the Subscriber a user name that impersonates someone else, is protected by trademark or other proprietary right law, or is vulgar or otherwise offensive.
4. TERM AND TERMINATION
4.1 Each Subscription Agreement shall take effect on its Commencement Date and shall continue until such time as it is terminated by either party as permitted by this Clause 4 (but not otherwise).
4.2 Each subscription will renew automatically, unless it is cancelled in accordance with this Section. For all subscriptions, the Subscriber must cancel the Subscriber’s subscription before it renews in order to avoid billing of subscription fees for the renewal term to the Subscriber’s credit card. We may cancel the Subscriber’s subscription at any time by notifying the Subscriber. The Subscriber may cancel the subscription by emailing [email protected] or by switching their account to the unpaid plan found on the webpage at https://www.echomtg.com/plans/. In the case of an emailed request for cancellation, the subscription will not be considered cancelled unless and until we have confirmed with the Subscriber receipt of said email.
4.3 The Service is only available to Subscribers. If a Subscriber ceases to be a Subscriber for any reason (or if suspends a Subscriber's use of the Company’s services or takes other adverse action against a Subscriber in connection with its Agreement), then the Company shall (without prejudice to its other rights and remedies) be entitled to terminate the Subscription Agreement without penalty forthwith upon giving emailed notice to the Subscriber.
4.4 We reserve the right to terminate without notice any account that threatens the security or operational stability of the website. In the case of such a termination, we will refund up to one month’s subscription fee upon request, for requests received by the one-year anniversary of the Termination Date.
4.4 Upon termination of the Subscription Agreement for any reason, the Company shall be entitled to disable the Subscriber's use of and access to the Service (including all Users). The Subscriber shall be liable to pay the full amount of the Subscription Fee for the period up to the date of termination.
5.1 The Subscription Fee is calculated as a monthly per user fee in accordance with the Company's prevailing rates as notified during the Subscription Process and shall be payable by the Subscriber monthly in advance. The Subscription Fee for any partial month shall be calculated pro rata on a per calendar days basis.
5.2 The Company may increase the Subscription Fee at the time of renewal, at the explicit agreement of the Subscriber.
5.3 Without prejudice to its other rights and remedies, the Company reserves the right, in the event of late payment (other than due to the fault of the Company), to suspend the Subscriber's access to and use of the Service.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 The Service (including all Reports) and all intellectual property rights comprised therein (including without limit all copyright, trade and service marks, database rights, design rights and other proprietary rights) is the property of the Company. Other than the limited right to use the Service (including all Reports) in accordance with these Terms and Conditions (and for no other purpose), no license or other right is hereby granted to the Subscriber by the Company.
6.2 The Subscriber agrees to protect the intellectual property and proprietary rights of the Company in the Service, to comply with all reasonable written requests made by the Company to protect such rights, and to notify the Company in writing promptly upon becoming aware of any unauthorized access or use of the Service by any party or of any claim that the Service infringes upon any intellectual property or other rights.
6.3 The Subscriber agrees not to make any use of the Company name or any other of the Company's trade names or logos other than as permitted by these Terms and Conditions without the Company's prior written consent.
7.1 The Company shall in no circumstances be liable for any indirect, economic, consequential or other similar loss including, without limit, any loss of business or profit or loss of or corruption to data, arising out of the Service (including the Reports).
7.2 The Company shall use its reasonable endeavors to ensure that the Reports are free from virus and other malicious code prior to download by an individual user. However, the Company does not accept any liability or other responsibility whatsoever for viruses or other malicious code which may be introduced to, or via, any Report during their download. The Subscriber accepts that it shall be responsible to ensure that its networks, systems hardware, software and data are protected by firewalls and other appropriate security measures and to ensure that all downloaded Reports are virus checked for viruses and other malicious code prior to their use and launch. Further, the Subscriber shall notify the Company as soon as possible in the event of it experiencing any usage problems with any Report which may be due to virus or similar malicious code.
7.3 While the Company shall endeavor to provide an accurate and timely Service, it shall be under no liability whatsoever for any inaccuracies, errors, mistakes or omissions in the Service (including any Reports), or for other actions taken in reliance upon the Service (including any Reports), or for any delays, failures or interruptions in the availability of the Service howsoever arising other than to use its reasonable endeavors to correct such inaccuracies, errors, mistakes or omissions or to remedy any such delays, failures or interruptions.
7.4 If, notwithstanding the other provisions of this Clause 7, the Company shall be found to be liable to the Subscriber under the Subscription Agreement, then the Company's liability shall be limited in each twelve (12) month period (the first starting on the Commencement Date with subsequent periods starting on the anniversary of the Commencement Date) to the aggregate amount of all Subscription Fees paid by the Subscriber in the relevant period.
7.5 The Company's obligations under each Subscription Agreement are without prejudice to any right or action of against a Subscriber under its Agreement and the Company accepts no liability whatsoever in connection with the acts or omissions of the Company, including (without limit) acts or omissions which result in a Subscriber being unable to access or use the Service for any period.
7.6 The Company shall not be liable for any interruption to the Service or any other failure to perform any of its obligations resulting as a consequence of any fire, flood, explosion, riot, civil disturbance, Act of God, legislation or regulation, lock-out or other labor dispute (other than a lock-out or other labor dispute in connection with any of the Company's employees), interruption to the world wide web or other means of communication or any other cause beyond the Company's control.
8.1 All Reports are made available to the Subscriber solely for the purpose of internal business evaluation and information and do not constitute a personal recommendation or take into account any particular trading or investment objectives, financial situations or individual needs. Before acting on any information in any Report, the Subscriber should consider whether it is suitable for its particular circumstances and, if necessary, seek professional advice. The material contained in the Reports is based on information that the Company considers to be reasonably reliable, but the Company does not warrant or represent that it is accurate, complete or current, and it should not be relied on as such.
8.2 All warranties and representations (implied or otherwise) are hereby excluded to the fullest extent allowed by applicable law. No representation or statement which is not expressed in writing in these Terms and Conditions shall be binding on the Company whether as a warranty, representation or otherwise.
9.1 Any notices required to be given under these Terms and Conditions shall be given by e-mail, and for these purposes an email sent in accordance with this Clause 9 shall be constitute "written notice". All such notices shall be deemed given on the first business day following the date that such e-mail is sent to the recipient party provided that, following sending, a "delivery failure report" or similar is not received by the sender. A "return receipt" or similar as received by the sender shall be sufficient evidence for the sender to prove that a notice has been given in accordance in this Clause provided that such notice had been correctly addressed in accordance with Clause 9.2.
9.2 Notices shall be given by email as follows:
9.2.1 If by the Subscriber - to the Company at [email protected]; and
9.2.2 If by The Company - to the Subscriber at the email contact address notified during the Subscription Process (as varied from time to time by email notice given in accordance with this Clause 9.2).
10.1 The Subscription Agreement is personal to the Subscriber. The Subscriber shall not assign or otherwise deal (whether in whole or in part) with the Subscription Agreement (or any beneficial interest in the Subscription Agreement) without the Company's prior written consent (such consent not to be unreasonably withheld or delayed).
10.2 The Subscription Agreement constituted by these Terms and Conditions constitutes the entire agreement between the parties and supersedes all prior representations (whether oral or written) relating to its subject matter.
10.3 A Subscription Agreement may not be amended unless agreed by a duly AUTHORIZED officer of the Company and confirmed by notice given writing by the Company to an individual Subscribed in accordance with Clause 10.2. Notwithstanding the foregoing, the Company shall be entitled, from time to time, to issue reasonable "generic" changes to these Terms and Conditions to reflect, for example, changes and enhancements to the Service and related processes and procedures. In such event, the Company shall post such changes as a revision to these Terms and Conditions on the Web Pages. The revised Terms and Conditions shall take effect (by way of a variation to the Subscription Agreement) immediately upon the Company giving email notification of such changes to the Subscriber in accordance with Clause 10.2.
10.4 A person who is not a party has no right to enforce any term of the Subscription Agreement but this does not affect any right of remedy of a third party which exists or is available apart from that Act.
10.5 The waiver by either party of any breach of the Subscription Agreement by the other party shall not be construed as a waiver of any subsequent breach or condition whether of the same or of a different nature.
11. LAW AND JURISDICTION
11.1 Each Subscription Agreement (including these Terms and Conditions) shall be governed and construed in accordance with laws of the State of Delaware as such laws are applied to agreements entered into and to be performed entirely in the State of Delaware and between Delaware residents. The Subscriber agrees to submit to jurisdiction in Delaware and that any claim arising under these Terms and Conditions will be brought solely in a court in San Diego, CA.
12. DEFINITIONS AND INTERPRETATION
12.1 In these Terms and Conditions, unless the context shall otherwise require:-
The Company means ThoughtBomb Studios LLC dba EchoMTG.com, a Delaware Corporation, and its affiliates and associated companies;
Subscribers means subscribers to the Company’s services;
Commencement Date means the date specified as such in the "Activation Confirmation" email sent by the Company to the Subscriber at its email address from The Company upon successful completion of the Subscription Process;
Report means an html or text file containing information on “Magic the Gathering” (a registered trademark of Hasbro, Inc.) cards and accessible as part of the Service;
Service means the provision of Reports which may be accessed via the Company's services and are distributed through the Company’s website, email, or newsletter, as the same may be enhanced or supplemented by the Company from time to time;
Subscriber means each individual, company, firm or other business entity which enters into a Subscription Agreement with the Company.
Authorized User means that individual, employed by a Subscribing company, firm, or other business entity, who has been authorized by us to access a Service or Report.
Subscription Agreement means each subscription agreement entered into with the Company as a result of a prospective Subscriber successfully completing the Subscription Process;
Subscription Fee means the monthly fee notified to each Subscriber during the Subscription Process, as amended from time to time in accordance with these Terms and Conditions;
Subscription Process means the subscription process accessible via the Web Pages;
Term means the period starting on the Commencement Date and ending with the termination of the Subscription Agreement in accordance with these Terms and Conditions;
Terms and Conditions means these terms and conditions, as amended from time to time as permitted in accordance with their terms;
Web Pages means the Company's web pages for subscription to the Service which is located on the Company Homepage at www.EchoMTG.com and EchoMTG.com.
12.2 Any reference to the singular shall include the plural and vice versa.
12.3 Clause headings are for convenience only and shall not affect the interpretation or construction of the clauses of these Terms and Conditions.
12.4 Any reference to a "party" is to a party to a Subscription Agreement, being the Company or a Subscriber, and "reference" to the parties shall be construed accordingly.