Privacy Policy – Magic in the Sky

Privacy Policy

Effective date: January 1, 2024

This Privacy Policy governs websites and mobile applications owned and operated by Magic in the Sky LLC (“MITS,” “we,” “us,” and “our”), including magicinthesky.com (the “Website”), and the Magic in the Sky Mobile Application (the “App” and together with the Website, the “Site”).

Scope of This Policy

Magic in the Sky collects certain information about or related to you through this Site. Some of the information Magic in the Sky collects may be “personal information”—information that identifies you personally, alone or in combination with other information available to us. Magic in the Sky has provided this Privacy Policy so that you will know what information Magic in the Sky collects, how Magic in the Sky uses this information, the types of third parties with whom Magic in the Sky may share this information, and some of the choices that are available to you.

On occasion, Magic in the Sky may offer special programs, activities, events or promotions (collectively, “Special Programs”) that have additional terms, privacy notices and/or consent forms that explain how any personal information you provide will be processed in connection with that program. We recommend you review the terms applicable to those programs before participating.

Your Consent

By using this Site, you are consenting to the collection, use, disclosure, and transfer of your information as described in this Policy.

Our Terms of Use

This Policy is part of the Terms of Use that govern your use of this Site. A link to our Terms of Use is provided at the bottom of each page of this Site.

Your Choices

In General. We respect your right to make choices about the ways we collect, use, and disclose your information. This Policy describes some of your choices, such as your choice to opt out of receiving “cookies.” We may ask you to indicate your choices at the time and on the page where you provide your information.

Do Not Track Mechanisms. California law requires this Policy to address how we respond to any “Do-Not-Track (‘DNT’) signal” delivered by your browser. Because of the changing state of technology and indecision within the industry regarding the meaning of DNT signals, we currently do not make any guarantee that we will honor DNT signals.

Previously Expressed Preferences. You may change your previously expressed preferences regarding how we use your information. For example, you can opt out of promotional emails we send to you by selecting the “unsubscribe” link located at the bottom of each communication. To change other preferences, please contact us using the information provided below.

Location Data

When you download the App, we may ask your permission to track your precise, real-time location. If you consent, we may track your location even when you are not using the App. You may change your location-tracking preferences at any time through the settings on your device or through the settings section in the App. Such location-tracking services may be erroneous, inaccurate, incomplete or time-delayed.

Information We Collect

Information You Manually Provide. Magic in the Sky collects the information you manually provide (using your keyboard, mouse, touchpad, or screen) when you use this Site. For example, we collect the information you provide when you communicate with us, purchase tickets, register for a sweepstakes, or otherwise interact with this Site. In addition, we may monitor or record web chat conversations in order to respond to your inquiries and provide you with a better guest experience. Some of the information you manually provide may be personal information, such as your name, contact information, photographs, comments, or other content you submit to our Site.

Information From Third-Party Social Media Platforms. You may be able to register with, log on to, or enhance your profile on this Site by choosing to automatically populate the requested data fields with information you previously provided to a third-party social media platform (such as Facebook or Twitter). By doing this, you are asking the third-party platform to send us information, including personal information, from your profile on that platform. We treat that information as we do any other information you give to us when you register, log on, or enhance your profile.

Information from your browser or device. Magic in the Sky collects information that is sent to us automatically by your web browser or mobile device. This information typically includes your IP address, the name of your operating system, the name and version of your browser, the date and time of your visit, and the pages you visit. The information we receive may depend on your browser or device settings.

The information we receive from your web browser and device is not, in and of itself, personally identifiable. Generally, we use this information in the aggregate to help us improve this Site and make it more compatible with the technology used by our visitors. However, we may combine it with other information in an attempt to identify you or we may combine it with information that does identify you. We may also review our server logs for security purposes—for example, to detect intrusions into our network—and we might share our server logs, which contain visitors’ IP addresses, with the appropriate investigative authorities who could use that information to trace and identify you.

Employment Information. Magic in the Sky collects information about employment applicants as further described in the “Employment Applications” section below.

Information Collected by Cookies and Other Technologies. We use “cookies” and other technologies to collect information and support certain features of this Site. For example, we may use these technologies to:

collect information about the ways visitors use this Site—which pages you visit, which links you use, and how long you stay on each page;
support the features and functionality of this Site—for example, to save you the trouble of reentering information already in our database or to prompt the settings you established on previous visits;
personalize your experience when you use this Site; and
improve our marketing efforts, including through use of targeted advertising.

We may link the information we collect using cookies and similar technologies to personal information that you provide. If you do not wish to receive cookies, you may set your browser to reject cookies or to alert you when a cookie is placed on your computer. Although you are not required to accept cookies when you visit this Site, you may be unable to use all of the functionality of this Site if your browser rejects cookies.

Information About Third-Party Cookies

In addition to the cookies Magic in the Sky delivers to your computer or mobile device through this Site, certain third parties may deliver cookies to you for a variety of reasons. For example, we use Google Analytics, a web analytics tool that helps us understand how visitors engage with our Sites. To learn more about Google Analytics, click here.
Other third parties may deliver cookies to your computer or mobile device for the purpose of tracking your online behaviors over time and across nonaffiliated websites and/or delivering targeted advertisements either on this Site or on other websites. You have choices about the collection of information by third parties on our Sites. For example, if you don’t want information about your visit to this Site sent to Google Analytics, you may download an Opt-out Browser Add-on by clicking here. Please note that the Add-on does not prevent information from being sent to Magic in the Sky. In addition, if you would like to opt-out of having interest-based information collected by certain entities during your visits to this Site or other websites, please click here. You will be directed to an industry-developed website that contains mechanisms for choosing whether each listed entity may collect and use data for online behavioral advertising purposes. It may be that some of the third parties that collect interest-based information on this Site do not participate in the industry-developed opt-out website, in which case the best way to avoid third-party tracking of your online behaviors may be through your browser settings and deletion of cookies.

How We Use Your Information

Generally, we use the information we collect through this Site:

to provide the information, products and services you request;
to provide you with effective customer service;
to provide you with a personalized experience when you use this Site;
to contact you with information and notices related to your use of this Site;
to contact you with special offers and other information we believe will be of interest to you (in accordance with any privacy preferences you have expressed to us);
to invite you to participate in surveys and provide Feedback to us (in accordance with any privacy preferences you have expressed to us);
to improve the content, functionality and usability of this Site;
to better understand your needs and interests;
to improve our products and services;
to improve our marketing and promotional efforts;
to process employment applications, as further described in the “Employment Applications” section below
for security, law enforcement, credit or fraud prevention purposes; and
for any other purpose identified in an applicable Privacy Notice, click-through agreement or other agreement between you and us.

How We Share Your Information

With Third–Party Vendors. Magic in the Sky shares information collected through this Site with third-party vendors who act for us or on our behalf. For example, we may use third-party vendors to design and operate this Site; to conduct surveys; and to help us with our promotional efforts. These third-party vendors may need information about you to perform their functions.

With Other Users of this Site. You may be able to submit User-Generated Content on or through this Site. Similarly, User-Generated Content that you post on our Facebook page or through Twitter may automatically appear on this Site using functionality made available by those third-party platforms. In this Policy, “User-Generated Content” or “UGC” refers to content that you post using social networking tools and that does not constitute Feedback. Any personal information contained in UGC can be read, collected, or used by others. In addition, we may use UGC you submit for advertising campaigns and other promotions. We may or may not use your name in connection with such use, and we may or may not seek your consent before using the content for such purposes. Therefore, you should have no expectation of privacy with respect to UGC you submit on or through this Site.

With Third-Party Social Media Platforms. We may provide functionality on this Site that allows you to automatically post information about the actions you take on this Site to a third-party social media platform (such as Facebook or X). If you choose to take advantage of this functionality, people with access to your profile on the third-party platform may be able to see the actions you have taken—for example, the comments you have posted or the items you have purchased. Thus, you should have no expectation of privacy in those actions. Further, if you choose to link your profile on this Site with an account on a third-party social media platform, we may share the information in your profile with that third-party platform.

With Other, Carefully Selected Business Partners. From time to time, we may share your information with selected third parties for their own marketing purposes. For example, we may partner with third parties to sponsor contests or other promotions, and we may share with these third parties the information you submit to us to participate in the contest or take advantage of the promotion. Before doing so, however, we may offer you the opportunity to “opt out” or “opt in,” as required by applicable law. If you do not opt out, your Personal Information will be subject to the information use and sharing practices of the third party, to the extent your information was shared with that third party.

In aggregate form. We use information collected through this Site to create a compiled, aggregate (statistical) view of usage patterns. We may share aggregate information about our customers, sales, online traffic patterns and related information to third parties who help us improve our business and services, but these statistics do not include any personally identifiable information. We may provide basic demographic information (gender and age) in conjunction with providing Individualized Data.

As Part of a Business Transfer. Your information may be transferred to a successor organization if, for example, we transfer the ownership or operation of this Site to another organization or if we merge with another organization. If such a transfer occurs, the successor organization’s use of your information will be subject to this Policy and the privacy preferences you have expressed to us.

To Comply with Laws and Protect Our Rights and the Rights of Others. We may disclose your information when we, in good faith, believe disclosure is appropriate to comply with a law, a court order or a subpoena. We may also disclose your information to prevent or investigate a possible crime, such as fraud or identity theft; to protect the security of this Site; to enforce or apply our online Terms of Use or other agreements; or to protect our own rights or property or the rights, property or safety of our users or others.

As Described in a Privacy Notice or click-through agreement. We reserve the right to disclose your information as described in any click–through agreement or any other terms and conditions to which you have agreed.

How We Protect Your Information

Magic in the Sky takes reasonable precautions to provide a level of security appropriate to the sensitivity of the information we collect. Although we use reasonable measures to help protect your information against unauthorized use or disclosure, we cannot guarantee the security of information provided over the Internet or stored in our databases and will not be responsible for breaches of security beyond our reasonable control.

Employment Applications

If you apply for employment with Magic in the Sky via the Site, we may collect information from and about you, including information you provide in connection with your application, information that you make available in your social media accounts, information about you that is available publicly, and information that you authorize us to collect via third parties, including former employers or references. We will use the information you provide to process your application, to monitor recruitment statistics, and to comply with government reporting requirements. We retain de-identified statistical information about applicants to help inform our recruitment activities. If an applicant becomes a Magic in the Sky employee, Magic in the Sky will maintain a record relating to that person’s employment (including information collected via the employment application) and provide additional information about our data practices in connection with employee data to the extent required by law.

In certain circumstances, you may submit your application for employment through a third-party service that displays our job posting. We do not control the privacy practices of these third-party services. Please review their privacy policies carefully prior to submitting your application materials.

A Note About Children’s Privacy

You must be at least 13 years old to have our permission to use this Site. We do not knowingly collect, use or disclose personal information about visitors under 13 years of age. If we discover that we have inadvertently collected information from anyone younger than the age of 13, we will delete that information. Please contact us with any concerns.

Links to Other Websites

This Policy applies only to this Site. Magic in the Sky and its affiliates may operate many different websites for different purposes and in different countries, where different laws may apply. If you visit another Magic in the Sky website, please take a moment to review the privacy policy posted on that site to learn what information may be collected through that site and how it is processed.

This Site may also contain links to websites that are not operated by Magic in the Sky or its affiliates. These links are provided for your reference and convenience only and do not imply any endorsement of the products sold or information provided through these websites, nor any association with their operators. Magic in the Sky does not control these websites and is not responsible for their data practices. Any information you provide to third parties on their websites is covered under their privacy and data collection policies and is not covered by this Policy. We urge you to review the privacy policy posted on any site you visit before using the site or providing any personal information.

Access to Your Information

You may have the right to review, correct, update, suppress, restrict or delete personal information that you have previously provided to us. You may also have the right to receive an electronic copy of your personal information for the purpose of transmitting it to another company, to the extent this right to data portability is provided to you by law.

You can contact us about your rights as described above by emailing us info@magicinthesky.com In your request, please make clear what personal information you would like to access or have changed, whether you would like to have your personal information removed from our database, or other limitations you would like to put on our use of your personal information. We may reject your request, as permitted by applicable law.

We reserve the right to verify your identity in connection with any requests regarding personal information to help ensure that we provide the information to the individual to whom it pertains or his or/her authorized representative. We will try to comply with your request as soon as reasonably practicable.

Please note that we often need to retain certain information for record keeping purposes and/or to complete any transactions that you began prior to requesting a change or deletion (e.g., when you enter a promotion, you may not be able to change or delete the information provided until after the completion of such promotion). There may also be residual data that will remain within our databases and other records, which will not be removed. In addition, there may be certain data that we may not allow you to review for legal, security or other reasons.

Website Hosting Location

Magic in the Sky is a U.S. based LLC. The servers that support this Site are located in the United States. While it is in our possession, your information will generally be stored in Magic in the Sky databases or databases maintained by our third-party service providers on servers and data storage devices located in the United States. U.S. data protection laws may not provide as much protection as the data protection laws in force in some other countries, however, we will process your information in accordance with this Policy no matter where our data is stored. If you are located in a country outside the United States, by using this Site you consent to the transfer of your information to the United States.

Important Information for California Residents

If you are a California resident, you may have certain additional rights and information about our use of your personal information.

California Civil Code Section 1798.83 permits you to request information regarding the disclosure of your personal information by Magic in the Sky to third parties for the third parties’ direct marketing purposes. Such requests must be submitted either by (1) sending an email to info@magicinthesky.com with the subject line “California Rights Request” or (2) completing a California Resident Rights Request Form

Important Information for Nevada Residents

Residents of the State of Nevada have the right to opt out of the sale of certain pieces of their information to third parties. We may “sell” personal information under Nevada law. If you are a Nevada resident and would like more information about our data sharing practices, please contact us.

Governing Law

This Policy shall be governed under the laws of the State of Texas, United States of America without regard to any conflict of law principles.

This Policy May Change

Magic in the Sky reserves the right to update or modify this Policy at any time and without prior notice by posting the revised version of this Policy on this Site.

Your use of this Site following any such change constitutes your agreement that all information collected from or about you after the revised Policy is posted will be subject to the terms of the revised Policy.

Questions About This Policy or Magic in the Sky’ Data Practices

If you have questions or concerns about this Policy, any Privacy Notice, or our data practices, please contact us by email at info@magicinthesky.com

Terms of Use

Thank you for visiting this “Site,” which includes www.magicinthesky.com (the “Website”). These Terms of Use govern your use of this Site.

Your Acceptance of These Terms of Use

These Terms of Use apply to all users of this Site. By using this Site you are agreeing to comply with and be bound by these Terms of Use. If you do not agree to these Terms of Use, you may not access or use this Site.

Your Acceptance of Our Privacy Policy

By agreeing to these Terms of Use, you agree to the terms of our Privacy Policy, which is expressly incorporated herein. Before using this Site, please carefully review our Privacy Policy. All personal information provided to us as a result of your use of this Site will be handled in accordance with our Privacy Policy. To the extent there are inconsistencies between these Terms of Use and our Privacy Policy, these Terms of Use control.

Your Consent to Other Agreements

When you sign up to use a special feature of this Site, you may be asked to agree to special terms governing your use of the special feature. In such cases, you may be asked to expressly consent to the special terms, for example, by checking a box or clicking on a button marked “I agree.” This type of agreement is known as a “click-through” agreement. If any of the terms of the click-through agreement are different than the terms of these Terms of Use, the terms of the click-through agreement will supplement or amend these Terms of Use, but only with respect to the matters governed by the “click-through agreement.”

Ownership of this Site and its Content

This Site, including all its Content are protected under applicable intellectual property and other laws, including without limitation the laws of the United States and other countries. All Content and intellectual property rights therein are the property of Magic in the Sky or the material is included with the permission of the rights owner and is protected pursuant to applicable copyright and trademark laws.

The presence of any Content on this Site does not constitute a waiver of any right in such Content. You do not acquire ownership rights to any such Content viewed through this Site. Except as otherwise provided herein, none of this Content may be used, copied, reproduced, distributed, republished, downloaded, modified, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without our express prior written permission.

Subject to the License limitations below, permission is hereby granted to the extent necessary to lawfully access and use this Site and to display, download, or print portions of this Site on a temporary basis and for your personal, educational, noncommercial use only, provided that you (i) do not modify the Content; (ii) you retain any and all copyright and other proprietary notices contained in the Content; and (iii) you do not copy or post the Content on any network computer or broadcast the Content in any media.

Content and Software License

If a Magic in the Sky service or product is configured to enable the use of software, content, virtual items or other materials owned or licensed by us (which includes the App) (“Magic in the Sky Technology”), we grant you a limited, non-exclusive, non-sublicensable, non-transferable license to access and use such software, content, virtual item or other material for your personal, noncommercial use only (the “License”).

You may not circumvent or disable any content protection system or digital rights management technology used with any Magic in the Sky Technology; decompile, reverse engineer, disassemble or otherwise reduce any Magic in the Sky technology to a human-readable form; remove identification, copyright or other proprietary notices; or access or use any Magic in the Sky Technology in an unlawful or unauthorized manner or in a manner that suggests an association with our products, services or brands. You may not access or use any Magic in the Sky Technology in violation of United States export control and economic sanctions requirements. By acquiring services, content or software through the Magic in the Sky Technology, you represent and warrant that your access to and use of the services, content or software will comply with those requirements.

Mobile Network

When you access the Site through a mobile network, your network or roaming provider’s messaging, data and other rates and fees will apply. Downloading, installing or using certain Magic in the Sky services may be prohibited or restricted by your network provider and not all Magic in the Sky services may work with your network provider or device.

Trademarks

The Magic in the Sky names and logos (including, without limitation, those of its affiliates), all product and service names, all graphics, all button icons, and all trademarks, service marks and logos appearing within this Site, unless otherwise noted, are trademarks (whether registered or not), service marks and/or trade dress of Magic in the Sky and/or its affiliates (the “Magic in the Sky Marks”). All other trademarks, product names, company names, logos, service marks and/or trade dress mentioned, displayed, cited or otherwise indicated within this Site are the property of their respective owners. You are not authorized to display or use the Magic in the Sky Marks in any manner without our prior written permission. You are not authorized to display or use trademarks, product names, company names, logos, service marks and/or trade dress of other owners featured within this Site without the prior written permission of such owners. The use or misuse of the Magic in the Sky Marks or other trademarks, product names, company names, logos, service marks and/or trade dress or any other materials contained herein, except as permitted herein, is expressly prohibited.

Responsibility for User-Generated Content Posted on or Through this Site

You are responsible for User-Generated Content that you post. Under no circumstances will we be liable in any way for any UGC.

This means that you, not Magic in the Sky, are entirely responsible for all UGC that you post and that you can be held personally liable for comments that are defamatory, obscene, or libelous, or that violate these Terms of Use, an obligation of confidentiality, or the rights of others. If any part of the UGC you post is not your original work, it is your responsibility to obtain any necessary permission to post it.

Because we do not control the UGC posted on or through this Site, we cannot and do not warrant or guarantee the truthfulness, integrity, suitability, or quality of that UGC. You also agree and understand that by accessing this Site, you may encounter UGC that you may consider to be objectionable. We have no responsibility for any UGC, including without limitation any errors or omissions therein. We are not liable for any loss or damage of any kind you may claim was incurred as a result of the use of any UGC posted, emailed, transmitted or otherwise made available on or through this Site. The UGC posted on or through this Site expresses the personal opinions of the individuals who posted it and does not necessarily reflect the views Magic in the Sky or any person or entity associated with Magic in the Sky.

You own User-Generated Content, but we may use it. You own the copyright in any original UGC you post. We do not claim any copyrights in UGC. However, by using this Site you are granting us and our subsidiaries, affiliates, successors and assigns, a nonexclusive, fully paid, worldwide, perpetual, irrevocable, royalty-free, transferable license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, distribute, publicly display and perform, publish, transmit, remove, retain repurpose, and commercialize UGC you post in any and all media or form of communication whether now existing or hereafter developed, without obtaining additional consent, without restriction, notification, or attribution, and without compensating you in any way, and to authorize others to do the same. For this reason, we ask that you not post any UGC that you do not wish to license to us, including any photographs, videos, confidential information, or product ideas.

We may disclose and/or remove User-Generated Content. Magic in the Sky has certain rights. We have the right (but do not assume the obligation) to:

monitor all UGC;
require that you avoid certain subjects;
remove or block any UGC at any time without notice at our sole and absolute discretion;
disclose any UGC and the identity of the user who posted it in response to a subpoena or whenever we believe that disclosure is appropriate to comply with the law or a court order, to prevent or investigate a possible crime or other violation of law, to protect the rights of Magic in the Sky or others, or to enforce these Terms of Use; and
terminate your access to and use of this Site, or to modify, edit or block your transmissions thereto in our sole discretion.

You agree that our exercise of such discretion shall not render us the owners of UGC you post, and that you will retain ownership thereof as described above.

Restrictions on User-Generated Content. It is a condition of these Terms of Use that you do not:

upload, post, transmit or otherwise make available
any UGC that is unlawful, harmful, hateful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, pornographic, profane, racially disparaging, indecent, or invasive of another’s privacy;
any UGC that constitutes or encourages activity illegal under criminal or civil law;
any UGC that is false, misleading, or fraudulent;
any UGC that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
any UGC that violates or infringes upon the rights of others, including UGC which violates the patent rights, copyrights, trademark rights, privacy rights, publicity rights, trade secret rights, confidentiality rights, contract rights, or any other rights of any individual, living or deceased, or any legal entity;
any UGC that contains the image, name or likeness of anyone other than yourself, unless (i) that person is at least eighteen years old and you have first obtained his/her express permission or (ii) that person is under eighteen years old but you are his/her parent or legal guardian;
any request for or solicitation of any personal or private information from any individual;
any request for or solicitation of money, goods, or services for private gain;
any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
any UGC that contains advertising, promotions or marketing, or which otherwise has a commercial purpose;
impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; or
violate any local, state, national or international law, rule or regulation.

By posting User-Generated Content, you represent and warrant that (i) you own or otherwise control all of the rights to the UGC and have the right to grant the license set forth in these Terms of Use; (ii) the UGC is accurate, and (iii) you have read and understood—and your UGC fully complies with—these Terms of Use and applicable laws and will not cause injury to any person or entity.

Removal of Content

In general. You can seek removal of objectionable UGC by contacting us using the information provided below. We will review all such requests and will remove UGC that we determine should be removed, in our sole discretion and in accordance with these Terms of Use and applicable law. Please be aware, however, that if the UGC has already been distributed to other websites or published in other media, we will not be able to recapture and delete it. Also, a back-up or residual copy of the UGC we remove from this Site may remain on back-up servers.

Violation of copyrights. Magic in the Sky does not knowingly violate or permit others to violate the copyrights of others. We will promptly remove or disable access to material that we know is infringing or if we become aware of circumstances from which infringing activity is apparent.

If you are requesting removal of content because of a violation of your copyrights, please note that the Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your own work, or the work of a third party for whom you are authorized to act, is featured on this Site or has been otherwise copied and made available on this Site in a manner that constitute copyright infringement, please notify us immediately. Your notice must be in writing and must include

an electronic or physical signature of the copyright owner or of the person authorized to act on behalf of the owner of the copyright interest;
a description of the copyrighted work that you claim has been infringed;
a description of where the material that you claim is infringing is located on this Site (including the URL, title and/or item number if applicable, or other identifying characteristics);
your name, address, telephone number, and email address, and, if you are not the owner of the copyright, the name of the owner; and
a written statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

Your statement must be addressed as follows:

Magic in the Sky LLC

info@magicinthesky.com

Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon us actual knowledge of facts or circumstances from which infringing material or acts are evident.

Your Feedback

Although we do not claim ownership of User-Generated Content you post using this Site, the Feedback you provide to us through this Site will be and remain our exclusive property. Your submission of Feedback will constitute an assignment to us of all worldwide rights, title and interests in your Feedback, including all copyrights and other intellectual property rights in your Feedback. We will be entitled to reduce to practice, exploit, make, use, copy, disclose, display or perform publicly, distribute, improve and modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Feedback that you do not wish to assign to us.

Your Obligations

In consideration of your use of this Site, you agree that to the extent you provide personal information to Magic in the Sky it will be true, accurate, current, and complete and that you will update all personal information as necessary.

To the extent you create an account through this Site, you understand and agree that any account you create, including your username and password, are personal to you and may not be used by anyone else. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password by you or by anyone else using your username and password, whether or not authorized by you. You agree to change your password immediately if you believe your password may have been compromised or used without authorization. You also agree to immediately inform us of any apparent breaches of security such as loss, theft or unauthorized disclosure or use of your username or password by contacting us using the information provided below. Until we are so notified you will remain liable for any unauthorized use of your account.

You agree to use this Site in a manner consistent with any and all applicable rules and regulations. You agree not to upload or transmit through this Site any computer viruses, trojan horses, worms or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer. Any unauthorized modification, tampering or change of any information, or any interference with the availability of or access to this Site is strictly prohibited. We reserve all rights and remedies available to us.

DISCLAIMERS

WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS SITE OR ITS CONTENT, OR ANY PRODUCT OR SERVICE AVAILABLE ON OR PROMOTED THROUGH THIS SITE. THIS SITE AND ALL OF ITS CONTENT (INCLUDING USER-GENERATED CONTENT) ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, MAGIC IN THE SKY, ITS AFFILIATES, AND THEIR SERVICE PROVIDERS AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, COURSE OF PERFORMANCE OR IN ANY OTHER WAY, WITH RESPECT TO THIS SITE, ITS CONTENT, AND ANY PRODUCTS OR SERVICES AVAILABLE OR PROMOTED THROUGH THIS SITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MAGIC IN THE SKY, ITS AFFILIATES, AND THEIR SERVICE PROVIDERS AND LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (B) RELATING TO THE SECURITY OF THIS SITE; (C) THAT THE CONTENT OF THIS SITE IS ACCURATE, COMPLETE OR CURRENT; OR (D) THAT THIS SITE WILL OPERATE SECURELY OR WITHOUT INTERRUPTION OR ERROR.

WE DO NOT REPRESENT OR WARRANT THAT THIS SITE, ITS SERVERS, OR ANY TRANSMISSIONS SENT FROM US OR THROUGH THIS SITE WILL BE FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES).

MAGIC IN THE SKY does not endorse and is not responsible for statements, advice and opinions made by anyone other than authorized MAGIC IN THE SKY spokespersons. WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR ANY statements, advice or opinions CONTAINED IN USER-GENERATED CONTENT AND SUCH statements, advice AND opinions DO NOT IN ANY WAY REFLECT THE STATEMENTS, ADVICE AND OPINIONS OF MAGIC IN THE SKY. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA. YOU ACCEPT THAT OUR SHAREHOLDERS, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND OTHER REPRESENTATIVES SHALL HAVE THE BENEFIT OF THIS CLAUSE.

APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF CERTAIN WARRANTIES, SO ALL OR PART OF THIS DISCLAIMER OF WARRANTIES MAY NOT APPLY TO YOU.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS WE, ON BEHALF OF OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS AND SERVICE PROVIDERS, EXCLUDE AND DISCLAIM LIABILITY FOR ANY LOSSES AND EXPENSES OF WHATEVER NATURE AND HOWSOEVER ARISING INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, GENERAL, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES; LOSS OF USE; LOSS OF DATA; LOSS CAUSED BY A VIRUS; LOSS OF INCOME OR PROFIT; LOSS OF OR DAMAGE TO PROPERTY; CLAIMS OF THIRD PARTIES; OR OTHER LOSSES OF ANY KIND OR CHARACTER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS SITE OR THE PRODUCTS AND SERVICES IT OFFERS. YOU ASSUME TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER BASIS.

IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF THE RELEASED PARTIES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED TEN DOLLARS ($10.00).

This Site gives you specific legal rights and you may also have other rights which vary from country to country. Some jurisdictions do not allow certain kinds of limitations or exclusions of liability, so the limitations and exclusions set out in these Terms of Use may not apply to you. Other jurisdictions allow limitations and exclusions subject to certain conditions. In such a case the limitations and exclusions set out in these Terms of Use shall apply to the fullest extent permitted by the laws of such applicable jurisdictions. Your statutory rights as a consumer, if any, are not affected by these provisions, and we do not seek to exclude or limit liability for fraudulent misrepresentation.

Links to Third-Party Websites

This Site may provide links to other websites operated by third parties. Because we have no control over third-party websites, we are not responsible for the availability of those websites and do not endorse and are not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites. Magic in the Sky shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, advertising, services, products, or other materials on or available from such websites. These Terms of Use do not apply to your use of third-party websites; your use of such websites is subject to the terms and policies of the owner of such websites.

Modification and Discontinuation

We reserve the right at any time and from time-to-time to modify, edit, delete, suspend or discontinue, temporarily or permanently this Site (or any portion thereof) and/or the information, materials, products and/or services available through this Site (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any such modification, editing, deletion, suspension or discontinuance of this Site.

Waiver

Our failure at any time to require performance of any provision of these Terms of Use or to exercise any right provided for herein will not be deemed a waiver of such provision or such right. All waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver by Magic in the Sky of any breach of any provision of these Terms of Use or of any right provided for herein will be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under these Terms of Use.

Severability

If any provision of these Terms of Use is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms of Use will remain in full force and effect.

Governing Law, Jurisdiction and Venue

These Terms of Use will be governed under the laws of the State of Texas without regard to any conflict of law principles. You agree that any action at law or in equity arising out of or relating to these Terms of Use that is not subject to arbitration shall will be filed, and that venue properly lies, only in state or federal courts located in San Antonio, Texas, United States of America and you consent and submit to the personal jurisdiction of such courts for the purposes of litigating such action. However, we retain the right to bring an action in any jurisdiction where we believe that infringement of these Terms of Use is taking place or originating.

Indemnity

You agree to indemnify and hold Magic in the Sky, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of this Site in violation of these Terms of Use and/or arising from a breach of these Terms of Use and/or any breach of your representations and warranties set forth above and/or if any material that you post using this Site causes us to be liable to another. We reserve the right to defend any such claim, and you agree to provide us with such reasonable cooperation and information as we may request.

Dispute Resolution By Binding Arbitration and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND DISCOVERY PROCEDURES AND APPELLATE RIGHTS ARE MORE LIMITED THAN IN COURT.

EXCEPT AS EXPRESSLY NOTED BELOW, ANY DISPUTE BETWEEN YOU AND MAGIC IN THE SKY OR AND OF ITS SUBSIDIARIES OR AFFILIATES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, THIS SITE, CONTENT, OR MAGIC IN THE SKY’ OR ITS SUBSIDIARIES’ OR AFFILIATES’ APPLICATIONS, PRODUCTS OR SERVICES MUST BE SUBMITTED TO BINDING ARBITRATION UNDER THE AUTHORITY OF THE FEDERAL ARBITRATION ACT. The dispute must be arbitrated in accordance with the then current rules and procedures cited below and under the auspices of the American Arbitration Association (“AAA”), except to the extent the rules and procedures are modified by these Terms of Use. This arbitration agreement is intended to be broadly interpreted, and will survive termination of these Terms of Use.

The arbitration agreement in these Terms of Use is governed by the Federal Arbitration Act (“FAA”), including its procedural provisions, in all respects. This means that the FAA governs, among other things, the interpretation and enforcement of this arbitration agreement and all of its provisions, including, without limitation, the class action waiver discussed below. State arbitration laws do not govern in any respect.

The following disputes and/or claims are expressly excluded from this binding arbitration provision:

A dispute or claim you may assert in small claims court if your claims apply; and
A dispute or claim relating to the enforcement of Magic in the Sky’ intellectual property rights.

A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Magic in the Sky should be addressed to: General Counsel, Magic in the Sky LLC (the “Notice Address”). If, through good faith, informal negotiation, Magic in the Sky and you do not reach an agreement to resolve the dispute within thirty (30) days after the Notice is received, you or Magic in the Sky may commence an arbitration proceeding. This informal negotiation requirement is designed to allow the Magic in the Sky (or you, in the case of a Dispute Magic in the Sky asserts against you) to make a fair, fact-based offer of settlement if it chooses to do so. You or Magic in the Sky cannot proceed to arbitration before the end of the informal negotiation period. If you or Magic in the Sky proceed to arbitration without providing a compliant Notice of Dispute and waiting until the conclusion of the informal negotiation period, a court may enjoin the filing and order the party that has not followed the informal negotiation process to reimburse the other party for any arbitration fees and costs already incurred. The compliance of a Notice of Dispute, including whether a Notice of Dispute contained all required information, is an issue to be decided by a court. If the parties discuss potential settlement during the informal negotiation period, any settlement terms offered by one party to the other shall not be communicated to the arbitrator.

The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes of the AAA (the “AAA Rules”), as modified by these Terms of Use, and will be administered by the AAA. The AAA rules are available online at www.adr.org.

THE ARBITRATION PROCEEDINGS IN THIS SECTION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY. Under no circumstances does Magic in the Sky consent to have any Disputes arbitrated using class action procedures, even if the arbitration provider has rules permitting class arbitrations.

For Disputes in which the claimant seeks less than USD $10,000, the arbitrator will decide the matter solely on the basis of written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For matters in which the claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings shall be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required and you reside in the United States, the hearing will take place in Bexar County, Texas, unless the arbitrator determines that this would pose a hardship for the claimant, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. For residents outside the United States, arbitration shall be initiated in Bexar County, Texas, and you and Magic in the Sky agree to submit to the personal jurisdiction of the federal or state courts located there, in order to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

To the fullest extent allowed by applicable law, the arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

If you are a resident of the United States, arbitration shall take place at any reasonable location convenient for you.

Arbitration fees shall be paid as provided for by the AAA Rules.

Except for the enforcement process described below, the decision of the arbitrator will be final and binding on all parties to the dispute; however, the arbitrator is bound by the terms of these Terms of Use. The arbitrator must also follow the applicable law and may not disregard the law based on principles of justice or equity which are not a specific part of the applicable law. The arbitrator will have no authority or power to make any award that extends, modifies or suspends any reasonable standard of business performance set by Magic in the Sky. Further, to the fullest extent allowed by applicable law, the arbitrator may not assess punitive or exemplary damages.

A judgment may be entered upon the arbitration award and enforced in accordance with the Federal Arbitration Act and applicable rules of arbitration.

You agree that these Terms of Use evidence a transaction involving interstate commerce and will be governed by and construed in accordance with federal law to the fullest extent possible.

Coordinated Filings

If 25 or more Notices of Disputes are sent that raise similar claims and have the same or coordinated counsel, these will be considered “Coordinated Cases” and will be treated as mass filings or multiple case filings according to the AAA Rules, if and to the extent Coordinated Cases are filed in arbitration as set forth in this Agreement. Magic in the Sky or you may advise the other of its or your belief that cases are Coordinated Cases, and disputes over whether a case or cases meet the contractual definition of “Coordinated Cases” will be decided by the arbitration provider as an administrative matter. Demands for Arbitration in Coordinated Cases shall only be filed with the arbitration provider as permitted by the bellwether process set forth below. Applicable statutes of limitations will be tolled for claims asserted in a Coordinated Case from the time a compliant Notice of Dispute has been received by a party until, under these Terms of Use, the Coordinated Case may be filed in arbitration or court.

Once counsel in the Coordinated Cases has advised Magic in the Sky that all or substantially all of the Notices of Dispute have been provided, counsel for the parties shall confer in good faith regarding the number of cases that should proceed in arbitration as bellwethers, to allow each side to test the merits of its arguments. If counsel for the parties do not agree on the number of bellwethers, an even number shall be chosen by the arbitration provider as an administrative matter (or, in the arbitration provider’s discretion, by a process arbitrator). Factors that the arbitration provider may consider in making this decision include the complexity of the dispute and differences in facts or applicable laws among various cases. Once the number of bellwethers is fixed, by agreement or by the arbitration provider, each side shall select half that number from among the claimants who have provided compliant Notices of Dispute, and only those chosen cases may be filed with the arbitration provider. The parties acknowledge that resolution of some Coordinated Cases will be delayed by this bellwether process.

Once all bellwether trials have concluded (or sooner if the counsel for the claimants and Magic in the Sky agree), the parties must engage in a single mediation of all remaining Coordinated Cases, with each side paying half the applicable mediation fee. Magic in the Sky and counsel for the claimants must agree on a mediator within 30 days after the conclusion of the last bellwether trial. If counsel for Magic in the Sky and claimants cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. Magic in the Sky and counsel for the claimants will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.

If the mediation does not yield a global resolution, this arbitration requirement shall no longer apply to Disputes that are the subject of Coordinated Cases for which a compliant Notice of Dispute was received by the other party but that were not resolved in bellwether proceedings. Such Disputes may be filed only in the state courts in Bexar County, Texas, or if federal jurisdiction exists, in the United States District Court for the Western District of Texas, and you consent as part of these Terms of Use to venue such cases exclusively in these courts. Nothing in this paragraph shall be construed as prohibiting either you or Magic in the Sky from removing a case from state to federal court if removal is allowed under applicable law. To the extent you are asserting the same claims as other persons and are represented by common or coordinated counsel, you agree to waive any objection that the joinder of all such persons is impracticable. If a formerly arbitrable Dispute is brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Cases who provided compliant Notices of Dispute, and any party may contest class certification at any stage of the litigation and on any available basis.

A court shall have authority to enforce this bellwether process and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.

Future Terms of Use Changes

Although Magic in the Sky may revise these Terms of Use in its discretion, Magic in the Sky does not have the right to alter the Terms of Use to arbitrate or the rules specified herein with respect to any Dispute once that Dispute arises if such change would make arbitration procedures less favorable to the claimant. Whether charged procedures are less favorable to the claimant is an issue to be decided by the arbitrator, and if multiple claimants are proceeding in Coordinated Cases, the applicability of revised terms to the Coordinated Cases will be decided by the arbitration provider as a process matter.

Class Action Waiver

To the maximum extent permitted by applicable law, for any case not subject to the requirement to arbitrate (except to the limited extent discussed above for Coordinated Cases), you and Magic in the Sky will only bring disputes, claims, or controversies between you and Magic in the Sky in an individual capacity and shall not:

seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (like private attorney general actions); or
consolidate or combine individual proceedings or permit another to do so without the express consent of all parties.

You and Magic in the Sky irrevocably waive any right you may have to a jury trial.

You agree that these Terms evidence a transaction involving interstate commerce and will be governed by and construed in accordance with federal law to the fullest extent possible.

These Terms of Use May Change

These Terms of Use are current as of the effective date set forth above. Magic in the Sky reserves the right to change these Terms of Use from time to time consistent with applicable laws and principles. These changes will be effective as of the date we post the revised version on this Site. Your continued use of this Site after we have posted the revised Terms of Use constitutes your agreement to be bound by the revised Terms of Use. If at any time you choose not to accept these Terms of Use, you should not use this Site.

Entire Agreement

These Terms of Use (together with our Privacy Policy and any Privacy Notices or click-through agreements applicable to you) contain the entire understanding and agreement between you and Magic in the Sky with respect to this Site and supersede all previous communications, negotiations, and agreements, whether oral, written, or electronic, between you and Magic in the Sky with respect to this Site and your use of this Site.

Definitions

The term “Content” refers to all of the software and code comprising or used to operate this Site, and all of the text, photographs, images, illustrations, graphics, sound recordings, video and audio-video clips, and other materials available on this Site, including User-Generated Content and Feedback.

The term “Feedback” refers to the Content you post on or through this Site that is specifically about how we can improve this Site and the products and services we make available through this Site.

The term “including” means “including, but not limited to.”

The term “Site” refers to any site on which these Terms of Use are posted and that is owned by Magic in the Sky LLC.

The terms “Magic in the Sky,” “we,” “us,” and “our” refer to Magic in the Sky LLC.

The term “User-Generated Content” or “UGC” means all of the text, photographs, images, illustrations, graphics, sounds, video and audio-video clips, and other content you post using the social networking tools we make available to you and that does not constitute “Feedback.”

Questions

If you have any questions about this Site or these Terms of Use, please contact us using the following information:

Magic in the Sky LLC

info@magicinthesky.com