Terms of Services and End User License Agreement
Acceptance of the Terms of Services and End User License Agreement
This Terms of Service and End User License Agreement (the “Terms”) is a legal agreement between you (“you”) and AppMagic, LLC (“Company”, “we” or “us”). These Terms, together with any documents expressly incorporated to it by reference govern your access to and use of our software and all new versions, updates, revisions, improvements and modifications thereof (the “Software”), which you access through our licensed application (“Licensed App”). The Software and the Licensed App are collectively referred to herein as the “Software Services.” These Terms also govern your access to and use of the on-demand requests by customers for lawn mowing services (“ Service Requests ”) and your performance of lawn mowing services (“ Mowing Services ”).
BY INDICATING YOUR ACCEPTANCE BY CLICKING ON THE APPROPRIATE BUTTON BELOW OR BY DOWNLOADING, INSTALLING, ACTIVATING OR USING THE SOFTWARE SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE TERMS.
The Software Services are offered and available to users who are 18 years of age or older, and reside in the United States. By using the Software Services, you represent and warrant that you are of legal age to form a binding contract with the Company and meet the foregoing eligibility requirements. If you do not meet all of these requirements, you are not authorized to access or use the Software Services.
You may use the Software Services to obtain Service Requests from owners of real property (“Home Owners”). You represent, by utilizing the Software Services or receiving Service Requests that you have capability to perform the Mowing Services that are the subject of such request. Additionally, you acknowledge that we have no control over your actions or the actions of Home Owners. Their Services Requests and your performance of Mowing Services, is explicitly subject to the limitations of liability set forth in these Terms. YOUR RESPONSE TO SERVICE REQUESTS AND PERFORMANCE OF MOWING SERVICES IS AT YOUR OWN RISK.
So long as you comply with these Terms, and subject to any limitations or restrictions in this Agreement, we give you a limited, nonexclusive, nontransferable, revocable license to download and use the Software, solely as necessary for you to locate and engage with Home Owners through Service Requests (“Permitted Use”). You may not copy, modify or reproduce any part of the Software Services, nor may you reverse engineer or attempt to extract the source code of the Software Services. You may not distribute, sell, rent, lease, transfer, or attempt to sell, rent, lease, or transfer, the Software or your license to use the Software or the Software Services. Your use of the Software does not give you any intellectual property rights in the Software or any part of the Software Services.
Access to the Software Services and Account Security
We reserve the right to withdraw or amend the Software Services or any part thereof in our sole discretion without notice to you. We use commercially reasonable efforts to make the Software Services available at all times. However, we make no guarantee of uninterrupted use or operation of the Software Services. We may temporarily or permanently suspend the Software Services, in whole or in part, where required by law, in the case of security violations or threats, for service improvements, maintenance or repair, or for any other reason deemed necessary or desirable by us or beyond our control. We will not be liable if, for any reason, all or any part of the Software Services are unavailable at any period of time.
You must provide, at your expense, the equipment, internet connection or wireless device to access the Software Services. We are not responsible for providing you with connectivity to the internet, wireless access, or any other telecommunications services necessary for you to receive or interact with the Software Services. It is your responsibility to ensure that all persons who access the Software Services through your internet connection, computer or mobile device are aware of these Terms and comply with them.
To access the Software Services, you will be asked to provide certain personal information, such as your name, username, password and email address. It is a condition of your use of the Software Services that all the information you provide us is accurate, current and complete.
When you are provided with a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You acknowledge that your account is personal to you and agree not to provide any other person with access to the Software Services or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer or internet connection so that others are not able to view or record your password or other personal information.
We have the right to disable your access to the Software Services at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
Prohibited Uses of the Software Services
You may use the Software Services only for lawful purposes and in accordance with these Terms. You agree not to use the Software Services:
• In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
• For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
• To send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards (defined below).
• To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter” or “spam” or any other similar solicitation.
• To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Software Services, or which, as determined by us, may harm the Company or users of the Software Services or expose them to liability.
Additionally, you agree not to:
• Use the Software Services in any manner that could disable, overburden, damage, or impair the Software Services or interfere with any other party’s use of the Software Services, including their ability to engage in real time activities through the Software Services.
• Use any robot, spider or other automatic device, process or means to access the Software Services for any purpose, including monitoring or copying any of the material on the Software Services.
• Use any manual process to monitor or copy any of the material on the Software Services or for any other unauthorized purpose without our prior written consent.
• Use any device, software or routine that interferes with the proper working of the Software Services.
• Introduce any viruses, Trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
• Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Software Services or Software is stored, or any server, computer or database connected to the Software Services.
• Attack the Software Services via a denial-of-service attack or a distributed denial-of-service attack.
• Otherwise attempt to interfere with the proper working of the Software Services.
User Contributions and Content Standards
The Software Services allow you to communicate with Home Owners and use interactive features (“Interactive Services”) that allow providers and Home Owners to submit, display or transmit (“post”) content or materials (collectively “User Contributions”) to the Software. The following content standards (“ Content Standards ”) apply to any and all of your User Contributions. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Contributions must not:
• Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
• Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
• Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
• Be likely to deceive any person.
• Promote any illegal activity, or advocate, promote or assist any unlawful act.
• Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
• Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
• Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
• Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you have full responsibility for such content, including its legality, reliability, accuracy and appropriateness.
Improvements and Updates to the Software Services
To improve the Software Services, we reserve the right to make enhancements or changes to the SoftwareServices without notice to you. The Software may include functionality to automatically check for updates or upgrades to the Software. You hereby agree that we may make such updates available to you from time-to-time without notice to you. All improvements and/or updates shall be subject to the terms and conditions of these Terms unless the Software Services are expressly provided to you under other, or additional terms and conditions, in which case, those other, or additional terms and conditions shall apply.
Ideas and Suggestions
We wish to continually expand and improve the Software Services.We welcome any ideas, suggestions, complaints, or feedback, related to the Software Services or for upgrades, updates, improvements, new features or functions thereto (“Ideas”). If you provide us with any Ideas, whether orally, in writing, or in any other way, you grant us a non-exclusive, worldwide, royalty-free, sub-licensable and non-revocable license to develop, make, reproduce, import, modify, make derivative works of, sell, and offer to sell Ideas as part of our technology, products or services. You shall not knowingly provide us with any Ideas that are subject to third party intellectual property rights or that include or reveal any confidential information of any person.
Intellectual Property Rights
The Software Services and their contents, features and functionality, including but not limited to all information, design, graphics, software codes, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by us, our licensors or other providers and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
These Terms permit you to use the Software Services solely for the Permitted Use. You shall not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Licensed App or available through our Software Services, except as follows:
• As set forth in the Software License section in the event you download a copy to your computer or mobile device.
• Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
• You may store files that are automatically cached by your web browser for display enhancement purposes.
• If we provide social media features with certain content, you may take such actions as are enabled by such features.
You shall not delete or alter any copyright, trademark or other proprietary right notices from copies of materials from the Software Services.
If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Software Services in breach of these Terms, your right to use the Software Services will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Software Services or any content accessible through the Software Services is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Software Services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.
The Company name, the Company logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors, whether registered or not. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans displayed on the Software Services, if any, are the trademarks of their respective owners.
Monitoring and Enforcement; Termination
We have the right to:
• Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
• Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates these Terms, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Software Services or the public or could create liability for the Company.
• Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Software Services.
• Terminate or suspend your access to all or part of the Software Services for any or for no reason, including without limitation, any violation of these Terms.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Software Services. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY AND ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE COMPANY OR SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review material before it is posted on or through the Software Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
Reliance on Information Posted
We do not warrant the accuracy, completeness or usefulness of any User Contributions. Your reliance on such User Contributions is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any user of the Software Services, or by anyone who may be informed of any of its contents.
Each time you respond to a Service Request and perform Mowing Services for a Home Owner, we will pay you, using our third-party payment services, the amount agreed to between you and the Home Owner, less the Company’s referral fee of 25%.
You are an independent contractor, not an employee or representative of ours. We will not provide any benefits to you such as workers’ compensation, insurance, or unemployment insurance. You must pay all of your own taxes and fees, such as FICA, income tax, unemployment insurance, disability insurance and workers’ compensation. These Terms do not make you our partner, and you won’t have authority to take any action to the contrary. You’re not permitted to make any public statements about us or on behalf of us. You understand that we use many different providers to perform Mowing Services, so these Terms do not guaranty you any particular amount of income.
Disclaimer of Warranties Regarding the Software Services
You understand and acknowledge that we cannot and do not guarantee or warrant that files available for downloading from the internet or through the Software Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Software Services for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SOFTWARE SERVICES.
YOUR USE OF THE SOFTWARE SERVICES IS AT YOUR OWN RISK. THE SOFTWARE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SOFTWARE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SOFTWARE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SOFTWARE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SOFTWARE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Disclaimer of Warranties Regarding the Mowing Services
YOUR RESPONSE TO SERVICES REQUESTS AND PERFORMANCE OF MOWING SERVICES IS AT YOUR OWN RISK. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE SECURITY, RELIABILITY, QUALITY, OR AVAILABILITY OF THE HOME OWNERS AND SERVICE REQUESTS. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICE REQUESTS WIILL BE ACCURATE, RELIABLE, ERROR-FREE OR WILL OTHERWISE MEET YOUR EXPECTATIONS.
WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE HOMEOWNERS. WE OPERATE ONLY AS AN INTERMEDIARY BETWEEN YOU AND THE HOMEOWNERS, PLACING YOU IN CONTACT WITH SERVICE REQUESTS FOR MOWING SERVICES AND COLLECTING PAYMENT FOR REMITTANCE THERETO LESS THE FEE FOR OUR SERVICES.
Your interactions with HOMEOWNERs and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the HOMEOWNERS. You should make whatever investigation you feel necessary or appropriate before proceeding with the Mowing Services. We shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, including your PERFORMANCE of the Mowing Services.
Limitation on Liability
In the event of damage to person or property, your recourse is against the HOMEOWNER only. We are not obligated to, and we will not, take part in any dispute. you hereby release us, our officers, employees, agents, affiliates, representatives and successors from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, direct or indirect, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Mowing Services and/or your interaction with HOMEOWNERs. You agree to take reasonable precautions and exercise the utmost personal care in all interactions with any individual or entity you come into contact with during your PERFORMANCE of Mowing Services.
IN NO EVENT WILL THE COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SOFTWARE SERVICES AND THE MOWING SERVICES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You agree to defend, indemnify and hold harmless the Company, its affiliates, licensors and service providers, and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms or your use or misuse of the Software Services or performance of Mowing Services, including, but not limited to, your User Contributions, other than as expressly authorized in these Terms or your use of any information obtained from or through the Software Services. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
Governing Law and Jurisdiction
All matters relating to the Mowing Services and these Terms and any dispute or claim arising therefrom or related thereto, shall be governed by and construed in accordance with the laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule.
EACH OF THE PARTIES HERETO: (I) HEREBY IRREVOCABLY SUBMITS ITSELF TO THE EXCLUSIVE JURISDICTION OF (A) THE CIRCUIT COURT OF ST. LOUIS COUNTY, MISSOURI, AND (B) THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, AS WELL AS TO THE JURISDICTION OF ALL COURTS FROM WHICH AN APPEAL MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT BY THE OTHER, OR ITS RESPECTIVE SUCCESSORS OR PERMITTED ASSIGNS, WITH RESPECT TO THIS AGREEMENT, AND (II) TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, OR THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER IN SUCH COURTS. EACH PARTY HEREBY EXPRESSLY WAIVES ALL RIGHTS OF ANY OTHER JURISDICTION WHICH THEY MAY NOW OR HEREAFTER HAVE BY REASON OF ITS PRESENT OR SUBSEQUENT RESIDENCE OR DOMICILE.
EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT PERMITTED BY LAW, OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY THE COURT WITHOUT A JURY AND THAT ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THIS AGREEMENT TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
You agree and acknowledge that the Software Services were developed at considerable time and expense to us. You further agree that your breach or threatened breach of these Terms will cause irreparable damage for which recovery of money damages would be inadequate and that we, therefore, may obtain injunctive relief to protect our rights under these Terms in addition to any and all other remedies available at law or in equity.
Waiver and Severability
No waiver of by the Company of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
We use Stripe for our payment processing. By agreeing these terms you also agree to Stripe's Connect Account Agreement as well as Terms of Service.
Changes to this Agreement
We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them on this page or otherwise make them available through the Software Services and apply to all access to and use of the Software Services thereafter. However, any changes to the dispute resolution provisions set forth in the section on Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice prior to the date the change is posted.
Your continued use of the Software Services following the posting of revised Terms means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.