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Terms of Service

Last Updated: October 1, 2024

NOTICE REGARDING DISPUTE RESOLUTION: THESE TERMS CONTAIN PROVISIONS THAT GOVERN HOW CLAIMS YOU AND MAJIC KITTY HAVE AGAINST EACH OTHER ARE RESOLVED (SEE THE “DISPUTE RESOLUTION AND ARBITRATION AGREEMENT” SECTION BELOW), INCLUDING AN OBLIGATION TO ARBITRATE DISPUTES, WHICH WILL, SUBJECT TO LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING ARBITRATION.

 

These Terms of Service (“Terms”) apply to your access to and use of the website www.majickitty.com and other online or mobile products and services (collectively, our “Services”) provided by Majic Kitty, LLC, (“Majic Kitty” or “we” or “us”). If you use our Services to purchase any of our products, or other goods we offer for sale via our Services (collectively, our “Products”), such purchase is governed by these Terms, including the Terms of Sale set forth in Section 12 below (unless you make a purchase for shipment outside of the United States, which is subject to Section 13 below instead). 

 

If you do not agree to these Terms, do not use our Services. 

 

We may supply different or additional terms in relation to some of our Services, and those different or additional terms become part of your agreement with us if you use those Services. If there is a conflict between the additional terms and these Terms, including any arbitration provision or dispute resolution provision, these Terms will control for that conflict.

 

We may make changes to these Terms from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, posting to the Site, providing a notice through our Services or other reasonable means.  You can tell these Terms have changed by checking the “last updated date” at the top of these Terms. The amended Terms will be effective immediately upon their posting to the Site. 

 

If you have questions about our Product or an order you have placed, please contact Majic Kitty support team at hello@majickitty.com. If you have any questions about these Terms or our Services, please contact us at hello@majickitty.com.  

 

1. Privacy

For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy. 

 

2. Eligibility

You must be at least 13 years of age to use our Services. If you are under 18 years of age (or the age of legal majority where you live), you may use our Services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for the acts or omissions of such user in relation to our Services. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or the person or entity violates these Terms, the person or entity agrees to be responsible to us.  

 

3. User Accounts and Account Security

You may be able to register for an account to access certain features of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission.  If you permit others to use your account credentials, you are responsible for the activities of such users that occur in connection with your account. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.  

 

4. User Content

Our Services may allow you and other users to create, post, store and share content, such as messages, text, photos, videos, and other materials (collectively, “User Content”). Except for the license you grant below, you retain all rights in and to your User Content, as between you and Majic Kitty.

 

You grant Majic Kitty and any future subsidiaries and affiliates a perpetual, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation to you. When you post or otherwise share User Content on our Services, you understand that your User Content and any associated information (such as your first name or profile photo associated with a product review or caption associated with a photo you share) may be visible to others.

 

You may not create, post, store or share any User Content that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that your User Content, and our use of such User Content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor User Content, we may delete or remove User Content at any time and for any reason without notice.  

 

This Section does not affect your data protection rights, it is only about your intellectual property rights.  

 

5. Browsing Session Information

We use technologies that maintain records of your browsing sessions, chats, and other activities on our Site. These technologies may include session replay that maintains a record of your interactions with our Site, chat providers that maintain a transcript of your chats, cookies, pixels, and other tracking technologies that share some of your interactions with our Site, as well as other technologies that collect and share your interactions with our Site. We use this information for quality control, customer service, fraud prevention and security, and marketing purposes and in accordance with our Privacy Policy. 

 

6. Prohibited Content and Conduct

You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Products and our Services. You will not:  

  • Sell, resell or commercially use our Products or our Services

  • Engage in any harassing, threatening, intimidating, predatory or stalking conduct

  • Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity 

  • Copy, reproduce, distribute, publicly perform or publicly display all or portions of our Services, except as expressly permitted by us or our licensors

  • Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services

  • Use our Services other than for their intended purpose and in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner

  • Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services

  • Use any data mining, robots or similar data gathering or extraction methods designed to scrape or extract data from our Services, whether automatic or manual, or other means not purposely made available by us, including to develop or improve any software program, algorithm, or by machine learning or artificial intelligence model; 

  • Develop or use any applications that interact with our Services without our prior written consent;

  • Bypass or ignore instructions contained in our robots.txt file

  • Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms; or 

  • Advocate, encourage, or assist any third party in doing any of the foregoing. 

You may also post or otherwise share only User Content that is nonconfidential and that you have all necessary rights to disclose. You may not create, post, store or share any User Content that:

  • Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent

  • Would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law

  • May infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party  

  • Contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences

  • Impersonates or misrepresents your affiliation with, any person, or entity  

  • Contains any unsolicited promotions, political campaigning, advertising or solicitations  

  • Contains any private or personal information of a third party without such third party’s consent  

  • Contains any viruses, corrupted data or other harmful, disruptive or destructive files or content  

  • In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Majic Kitty or others to any harm or liability of any type  

Enforcement of this Section 6 is solely at our discretion, and failure to enforce this Section 6 in some instances does not constitute a waiver of our right to enforce it in other instances. In addition, this Section 6 does not create any private right of action on the part of any third party or any reasonable expectation that our Services will not contain any content that is prohibited by such rules.     

7. Ownership; Limited license

Our Services, including any text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by Majic Kitty or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein and violate our intellectual property rights.

 

8. Trademarks

Majic Kitty, the stylized cat Logo, along with our other logos, product or service names, slogans, and the look and feel of the Services are trademarks of Majic Kitty and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.  

9. Feedback

You may voluntarily communicate to us any questions, comments, suggestions, ideas, original or creative materials or other information about Majic Kitty, our Products, or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including, without limitation, to develop, copy, publish, or improve the Feedback in our sole discretion. You understand that Majic Kitty may treat Feedback as nonconfidential. 

 

10. Repeat Infringer Policy; Copyright Complaints

In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify Majic Kitty’s designated agent as follows:

Designated Agent: Copyright Agent

Address: 117 South Lexington Street, Suite 100

Harrisonville, MO 64701-2444

E-Mail Address: hello@majickitty.com

 

Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to Majic Kitty for certain costs and damages.

 

11. Third-Party Content

We may provide information about third-party products, services, activities or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. Majic Kitty does not control or endorse, and makes no representations or warranties regarding, any Third-Party Content, and your access to and use of such Third-Party Content is at your own risk.

 

12. Terms of Sale

The Term of Sale set forth in this Section 12 apply to the purchase of Products using our Services. By purchasing a Product via our Services, you accept and agree to be bound by these Terms of Sale.  If you do not agree to these Terms of Sale, do not purchase Products via the Services. 

 

If you are making a purchase for shipment outside of the United States, this Section 12 does not apply to you. Please refer to Section 13 below instead. 

 

A. Order Eligibility

To complete your purchase, you must have a valid billing and shipping address within a country that can be selected for the billing and shipping addresses as part of the checkout process on the Services.

 

B. Product Availability, Display, and Specifications

Details of Products available for purchase are set out on our Services. All features, content, descriptions and prices of our Products described or depicted on the Services are subject to change at any time without notice. We attempt to ensure that information on the Services is complete, accurate, and current. Despite our efforts, the information on the Services may occasionally be inaccurate, incomplete, or out of date. We make no representation as to the completeness, availability, accuracy or currency of any information on the Services. For example, Products included on the Services may be unavailable or may have different attributes or ingredients than those listed.

 

We make reasonable efforts to publish information and display Product images accurately, but we cannot guarantee that the image you see on your monitor or mobile device will exactly match the Product. Packaging and labeling may vary from that shown and may contain more and/or different information from that shown on the Services. You should not solely rely on the information presented on the Services and should always read labels, warnings, and directions for safe use on the labeling and package you receive before using any of our Products.


 

C. Purchase Restrictions and Quantity Limits

You may only purchase Products for personal use by either yourself or your intended recipient of the Products. The Products are not authorized for resale.  We may place a limit on the quantities that may be purchased per order, per account, per credit card, per person, or per household. We reserve the right, without prior notice, to refuse service to any customer or reject any order at any time and refund any money you have paid for such order.

 

D. Order Process; Errors

You will have the opportunity to review and confirm your order, including delivery address, payment method, and other details of your order. We will send you an email acknowledging your order shortly after you place it, and our acceptance will be complete at the time we send such email. We will arrange for shipment of the Products to you. You will pay all shipping and handling charges specified during the ordering process. Title and risk of loss in any Products you purchase pass to you when the shipping carrier receives the goods from Majic Kitty.  Shipping options and availability of promotions like free shipping may not be available for all locations or address types. Shipping and delivery dates are estimates only and cannot be guaranteed.  We are not liable for any delays in shipments.  

 

We reserve the right to refuse or cancel any order prior to delivery. For example, if there are errors on the Services or made in connection with your order, inaccuracies in Product or pricing information or Product availability, we reserve the right to correct the error and charge you the correct price or cancel your order. We also may require verification of information prior to the acceptance and/or shipment of any order. We will contact you if any portion of your order is cancelled or if additional information is required to accept your order. Occasionally, the manufacture or distribution of a certain Product may be delayed. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule.

 

E. Price

Prices shown on the Services exclude all taxes or charges for shipping and handling. Taxes and shipping and handling costs will be added to the amount of your purchase and itemized on the check-out page. You will have an opportunity to review taxes and delivery costs before you confirm your purchase. Each item in your shopping bag is shown at the current price.  All prices on the Services are subject to change at any time without notice.

 

F. Payment

The Services give you several payment options. We reserve the right to change the payment options we offer at any time and for any reason. Payment must be received by us before our acceptance of an order. When you provide credit card information or other information necessary to facilitate payment for your order, you represent that (a) you are the authorized user of the credit card that is used to pay for our Products, (b) the credit card information you supply is true, correct and complete, (c) charges incurred by you will be honored by your credit card company, and (d) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any. 

 

In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses. Credits or refunds will be made to the same method of payment and account used to place the order or can be issued as store credit if you select that option.  

G. Return Policy

OUR RETURN POLICY IS IN ADDITION TO ANY STATUTORY RIGHTS YOU MAY HAVE UNDER LAW.

We hope that you will be pleased with Products you purchase using our Services. However, if for any reason you decide to return a Product that you purchased via our Services, you must notify Majic Kitty and return the Product to us within thirty (30) days from the date such Product was purchased. Majic Kitty will not accept returns of products purchased from other retailers. Any Majic Kitty branded products purchased from other retailers are subject to that retailer’s return policies, and Majic Kitty disclaims any liability with respect to the return of such products. In addition, Majic Kitty will only accept a return if:

  • The Product(s) are returned from the country where it was originally shipped by Majic Kitty; and

  • You initiate the return through our designated returns process by emailing hello@majickitty.com.

 

Majic Kitty may decline a return if it fails to meet the criteria set forth above. Majic Kitty does not take title to returned Products until the Product is received by Majic Kitty. Once the Product you are returning has been received and processed, Majic Kitty will issue a refund to the original payment method used to purchase the Product or will issue you store credit, depending upon the option you selected when initiating the return. If the Product was purchased with a Gift Card (defined below), Majic Kitty will issue store credit for the refund amount. For items given or received as a gift, Majic Kitty can refund the payment method used by the purchaser or provide the recipient with store credit. The refund amount will include the purchase price of the returned Product and any associated sales tax. Unless prohibited by law, any shipping and handling charges paid for the original purchase will not be refunded. 

 

H. Return Procedure

To initiate a return, you must use our self-service portal available at this link. To fill out the return request, you will need to provide your order number (found in your order confirmation email) and the shipping zip code associated with the order. You can then select which Product(s) you wish to return and the options for refund (if applicable), including a refund to your original payment method or store credit.

 

After you file the return request, you will be provided with a pre-paid shipping label to use to return the Product(s).

 

If applicable, Majic Kitty will initiate the refund associated with your return upon receipt of the returned Product(s). Please note that the time it takes for a refund amount to appear on your billing statement may differ based on your payment provider and billing cycle.

 

If, in our reasonable determination, a Product shipped to us is ineligible for return, we will not be responsible for returning that ineligible Product to you. Majic Kitty has no obligations with respect to such ineligible Products. 

 

13. International Orders

If you enter an international shipping address (defined as any address outside the contiguous United States) at the beginning of the checkout process, we will begin processing on the same day. Purchases for shipment outside of the United States are subject to your bank or payment method Terms of Sale. All transactions will be converted to and processed in USD. For such purchases, Section 12 of these Terms does not apply.  

 

14. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless Majic Kitty and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “Majic Kitty Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of our Products or Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with our Products or Services. You will promptly notify Majic Kitty Parties of any third-party Claims, cooperate with Majic Kitty Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys' fees). The Majic Kitty Parties will have control of the defense or settlement, at our sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Majic Kitty or the other Majic Kitty Parties.  

 

15. Disclaimer of Warranties and Release

Your use of our Products or our Services is at your sole risk. Except as otherwise provided in these Terms or in writing by us, our Products and our Services and any content therein are provided “as is” and “as available” without warranties of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Majic Kitty does not represent or warrant that our Services are accurate, complete, reliable, current or error-free. While Majic Kitty attempts to make your use of our Services and any content therein safe, we cannot and do not represent or warrant that our Services or servers are free of viruses or other harmful components. You assume the entire risk as to the quality and performance of the Services.  

 

To the fullest extent permitted by applicable law, you release Majic Kitty and the other Majic Kitty Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to (a) your use of our Products or Services; (b) disputes between users of our Services; and (c) the acts or omissions of third parties.

 

Some jurisdictions do not allow or limit the exclusion of certain warranties, so the disclaimers and limitations above may not apply to you to the extent applicable law so requires. Some jurisdictions may impose additional warranties for consumer contracts, which may be applicable to you depending on your jurisdiction of residence or where you purchased the Product.

 

If you are a consumer located in the United Kingdom or a country in the European Economic Area, Majic Kitty warrants that it will provide the Services using reasonable skill and care, and this Section 16 does not limit your rights and protections under your country’s consumer laws. 

 

16. Limitation of Liability

To the fullest extent permitted by applicable law, Majic Kitty and the other Majic Kitty Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits, even if Majic Kitty or the other Majic Kitty Parties have been advised of the possibility of such damages. If you are a consumer located in the United Kingdom or a country in the European Economic Area, this provision shall be interpreted to mean that, to the fullest extent permitted by applicable law, Majic Kitty and the other Majic Kitty Parties will not be liable to you for any losses that were not foreseeable by Majic Kitty and you at the time you entered into these Terms.

  

The limitations set forth in these Terms will not limit or exclude liability for death or personal injury caused by negligence, the gross negligence, fraud or intentional misconduct of Majic Kitty or the other Majic Kitty Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. 

17. Transfer and Processing Data

In order for us to provide our Services, you agree that we may process, transfer and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law. For more information regarding how Majic Kitty processes, transfers, and stores information about you, see our Privacy Policy.  

 

18. Dispute Resolution; Binding Arbitration

Please read this Section 19 carefully because it requires you to arbitrate certain disputes and claims with Majic Kitty and limits the manner in which you can seek relief from us, unless you opt out of arbitration by following the instructions set forth below. No class or representative actions or arbitrations are allowed under this arbitration agreement. In addition, arbitration precludes you from suing in court or having a jury trial.   

 

Informal Dispute Resolution. We try to address any disputes without the need to initiate a formal legal case. You agree that prior to submitting any dispute or claim to arbitration for resolution, you and we agree to make a good faith effort to resolve it informally, including having at least one telephone or videoconference conversation between you, personally, and us. To initiate this good faith effort to informally resolve a dispute, you agree to notify us in writing by email at hello@majickitty.com of the nature of the dispute, the basis for your claims and the resolution that you are seeking, including any monetary amount, with as much detail as you can provide so that we can gain a sufficient understanding of the dispute. Within the sixty (60) days following our receipt of this notice, you agree to engage in good faith efforts to resolve the dispute, including personally participating in a telephone call or videoconference with us. You may have a lawyer attend the call with you if you wish. If the dispute is not resolved within that sixty (60) days (which period can be extended by agreement of the parties), you or we may commence an arbitration to resolve the dispute consistent with the process set forth below. Compliance with and completing this informal dispute resolution process is a condition precedent to commencing an arbitration. You and we agree to toll any applicable statute of limitations and filing fee deadlines while the parties engage in this informal dispute resolution process from the date we receive your notice to the date an arbitration is commenced or the conclusion of the 60-day period described above, whichever is sooner. A court of competent jurisdiction shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration.   

  

Arbitration Agreement and Waiver of Certain Rights. You and we agree that, except as set forth below, we will resolve any controversies, claims, counterclaims, or other disputes between you and Majic Kitty or  you and a third-party agent of Majic Kitty (a “Claim”) through binding and final arbitration instead of through court proceedings, in accordance with the Consumer Arbitration Rules of the American Arbitration Association (“AAA Rules”). This arbitration agreement applies to any existing or future Claims that you have not individually filed in a court of law or in arbitration prior to the date you agreed to these Terms.  The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. You and we hereby waive any right to a jury trial of any Claim. The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. You and we agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration, by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies, or as specifically permitted by state law. 

 

The Federal Arbitration Act and federal arbitration law apply to this agreement. A court of competent jurisdiction has exclusive authority to determine the existence, scope, and validity of the arbitration agreement and the arbitrability of any claim or counterclaim, including, without limitation, whether any conditions precedent to the commencement of an arbitration have been completely satisfied and any objections with respect to any of the foregoing. 

 

To begin an arbitration proceeding, you must send us an individual letter signed by you requesting arbitration and describing your claim to Majic Kitty, LLC, 117 South Lexington Street, Harrisonville, MO 64701, Attention: Legal Department. This letter must be sent at least ten (10) days before you initiate an arbitration proceeding against us. 

 

Any party to the arbitration may, at any time more than ten (10) days before arbitration, serve an offer of compromise in writing upon any other party to the action. Offers of compromise pursuant to these Terms will be adjudicated and interpreted in accordance with California Code of Civil Procedure section 998. 

 

If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.  Notwithstanding the foregoing, if your attorney is paying the administrative costs, filings fees, arbitrator fees, and other associated arbitral costs on your behalf, and your attorneys' may recover all or a portion of those fees only if you obtain an award in the arbitration, your attorney must evenly split all costs with us initially. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate. 

 

This arbitration agreement does not preclude either party from seeking action by federal, state, or local government agencies. You and we also have the right to bring qualifying claims in small claims court or transfer qualifying claims to small claims court. Either party may elect that a Claim be filed exclusively in a small claims court of competent jurisdiction by providing notice to the other party. In the event a Claim has already been filed in arbitration, the party who has filed that Claim will, within ten (10) days of receiving such a notice, withdraw their Claim from arbitration. The parties will then proceed with the Claim exclusively in small claims court. A party may apply to any court of competent jurisdiction to enforce the terms of this paragraph. 

 

In addition, you and we retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions. Any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms. 

 

Neither you nor Majic Kitty may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. You may not bring Claims in arbitration on a class or representative basis. The arbitrator can decide only your and/or Majic Kitty’s individual Claims. If for any reason a claim proceeds in court rather than in arbitration you and Majic Kitty each waive any right to a jury trial. The arbitrator may award in the arbitration the same damages or other relief available under applicable law, including injunctive and declaratory relief, as if the action were brought in court on an individual basis. Notwithstanding anything to the contrary in the foregoing or herein, the arbitrator may not issue a “public injunction” and any such “public injunction” may be awarded only by a federal or state court. If either party seeks a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party’s claim or prayer for “public injunctive relief.” In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator. 

 

If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms. This Section of the Terms will survive the termination of your relationship with us. 

 

THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR MAJIC KITTY WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION. 

 
Mass Arbitration Process Requirements. If twenty-five (25) or more similar claims are asserted against Majic Kitty at or around the same time by the same or coordinated counsel or are otherwise coordinated (and your Claim is one such claim), you understand and agree that the resolution of your Claim might be delayed. You also agree to the following process and application of the AAA Multiple Consumer Case Filing Fee Schedule and Supplementary Rules. Twenty (20) claims shall be selected to proceed to individual arbitration proceedings as part of a first batching process, ten (10) of which will be selected by the claimants and ten (10) of which will be selected by Majic Kitty. The remaining claims shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of the staged process described herein. If the parties are unable to resolve the remaining claims after the conclusion of the initial twenty (20) proceedings, the parties shall participate in a global mediation session before a retired state or federal court judge, for which Majic Kitty will pay the mediator's fee. If the parties are unable to resolve the remaining claims through mediation at this time, then forty (40) claims shall be selected to proceed to individual arbitration proceedings as part of a second batching process, twenty (20) of which will be selected by the claimants and twenty (20) of which will be selected by Majic Kitty. (If there are fewer than forty (40) claims remaining, all shall proceed.) The remaining claims shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of the staged process described herein. In any batching process, a single arbitrator shall preside over each proceeding, and only one proceeding may be assigned to each arbitrator unless the parties agree otherwise. If the parties are unable to resolve the remaining claims after the conclusion of the forty (40) proceedings, the parties shall participate in another global mediation session before a retired state or federal court judge, for which Majic Kitty will pay the mediator's fee. If the parties are unable to resolve the remaining claims in mediation at this time, this staged process shall continue with no more than one hundred (100) claims proceeding at any time in a staged order that is selected randomly or by the AAA, until all the coordinated claims, including your Claim, are adjudicated or otherwise resolved. At any time during these proceedings, we agree to participate in a global mediation session should your counsel request it in an effort to resolve all remaining claims. Any applicable statute of limitations on your Claims and filing fee deadlines shall be tolled for claims subject to this section regarding "Mass Arbitration Process Requirements" from the time claims are selected for the first set of batching proceedings until the time your Claim is selected to proceed in arbitration, withdrawn, or otherwise resolved. A court of competent jurisdiction shall have authority to enforce this section regarding “Mass Arbitration Process Requirements” and, if necessary, to enjoin the filing or prosecution of arbitration demands against Majic Kitty. Should a court of competent jurisdiction decline to enforce these “Mass Arbitration Process Requirements,” you and we agree that your and our counsel shall engage in good faith and with the assistance of a Process Arbitrator to devise and implement procedures that ensure that arbitration remains efficient and cost-effective for all parties. Either party may engage with the AAA to address reductions in arbitration fees. 

 

19. Language

It is the express wish of the parties that this Agreement and all related documents, including notices and other communications, be drawn up in the English language only. Il est la volonté expresse des parties que cette convention et tous les documents s’y rattachant, y compris les avis et les autres communications, soient rédigés et signés en anglais seulement. 

 

20. Governing Law and Venue

Except as otherwise described in these Terms, these Terms will be governed by and construed and enforced in accordance with the laws of Missouri except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of Missouri or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. To the extent any action relating to the use of the Products or Services or any transaction with Majic Kitty is not required to be arbitrated or filed in small claims court in accordance with the Arbitration Agreement, such action must be brought in the state or federal courts of Missouri and the United States, respectively, sitting in Saint Louis. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action. 

 

If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not be applicable to you (but only to the extent that local law conflicts with this section).

 

21. Modifying and Terminating our Services

We reserve the right to modify our Products or Services or to suspend or stop providing any of our Products or all or portions of our Services at any time. You also have the right to stop using our Services at any time. Except for liability that we do not limit or exclude under these Terms (as described in Section 15), we are not responsible for any loss or harm related to your inability to access or use our Services. 

 

22. SMS Program

This section applies to you if you choose to participate in a forthcoming Majic Kitty short message service program (“SMS Program”). By participating in the SMS Program, you agree to receive recurring automated promotional and personalized marketing text messages from Majic Kitty, including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other phone number that you designate. Consent to receive automated marketing text messages is not a condition of any purchase.

 

Message and data rates may apply to any messages sent to you from us and to us from you. Message frequency will vary. Majic Kitty reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. Majic Kitty also reserves the right to change the short code or phone number from which messages are sent.

 

Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas.  We will be able to deliver messages to the following mobile phone carriers: Major carriers: AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel, Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless). Majic Kitty, its service providers and the mobile carriers supported by the SMS Program are not liable for delayed or undelivered messages.

 

Cancellation. Once the program begins, you can cancel your participation in the SMS Program at any time. Just text the keyword "STOP" to our short code. After texting STOP to our short code, will send you a text message to confirm that your request has been processed. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP keyword command and agree that Majic Kitty and its service providers will have no liability for failing to honor such requests. 

 

Help. If at any time you forget what keywords are supported, just text “HELP” to the short code. After you text HELP to the short code, we will respond with our customer care information.

 

Customer Care. If you have any questions about the SMS Program, contact our customer care team at hello@majickitty.com

 

 

23. Severability

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. 

 

24. Miscellaneous

The failure of Majic Kitty to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You agree that communications and transactions between us may be conducted electronically. We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law. 

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