Definitions. In these terms and conditions the following terms shall have the meanings allocated to them "Agreement" means these terms and conditions the Price List and the Registration Form ; "Charges" means the charges payable by you for the Service details of which appear on the Price List at www.magicandsoundsystems.php or www.MrTricky/index.php; "Internet" means any global information system which uses the Transmission Control Protocol/Internet Protocol suite and/or other protocols; "Material" means any information displayed, accessed or made available by or to you via the Internet using the Service; "Minimum Period" means a period of twelve months commencing from the Start Date; "Postboard" means the web site page provided by us from time to time to display changes to the Service or these Conditions or otherwise communicate with our customers; "Price List" means the price list published by Funtastic Entertainment, Inc. on the prices page of www.MrTricky.com/products.php or www.wearefun.com/index.php setting out the Charges payable for the Service as may be amended from time to time. "Privacy Notice" means the privacy notice governing our use of the personal information that we collect from you in connection with the Service and set out on our website at www.MrTricky.com/privacy.php; "Registration Form" means the form displayed online by us which you must complete truthfully, completely and accurately with the required information; "Service" or "Services" means the services which we are to provide to you from time to time in accordance with these Conditions which you may use to access the Internet and any services, software and facilities which we provide and you use in connection with the Services; "Start Date" means the date when the Order or any part of it is first made available to you or alternatively when you first start to use the Service, whichever is the earlier; "Funtastic Entertainment, Inc.", "we" or "us" means Funtastic Entertainment, Inc., whose registered office is at 1070 Bank St., Painesville, Ohio 44077-3748 Email info@wearefun.com "you" means the user whose details are set out on the Registration Form and any person who we reasonably believe is acting with your knowledge; and Clause headings are for ease of reference and do not form part of or affect the interpretation of the Contract.
2. The Services. 2.1 We shall provide you with the Services on the terms and conditions of the Contract. By completing the Registration Form you agree to deal with us on these Conditions to the exclusion of all other terms, conditions, warranties or representations (except those made fraudulently) subject to any obligations Funtastic Entertainment, Inc. may have under any relevant statute or statutory instrument. 2.2 We do not warrant that the Orders will be free of defects; these warranties fall from within the individual manufacturers of said products ordered. In performing our obligations under the Contract we will exercise the reasonable care and skill of a competent Internet Commerce Clearinghouse. 2.3 From time to time we may suspend certain Services or parts or our entire network for the purposes of routine maintenance work. We shall give such notice to you as possible by posting on the postboard or by e-mail, but we shall not be liable for any loss suffered by you or others as a result of such suspension. 2.4 We will hold all information which you submit in the Registration Form or otherwise supply to us in a computer database. We reserve the right to supply such information to the police and regulatory or government authorities and to any person who complains to us about any Material appearing on any web site you operate using the Services or which you have sent using the Services or who is unable to contact you via such web site. We also reserve the right to disclose information about you and your use of the Services to third parties provided such information does not enable them to identify you. Use of the data wiill be in accordance with our Privacy Policy.
3. Your Obligations. You: 3.1 are responsible for providing and paying for an appropriate telecommunications, ("internet access") and complying with the conditions applicable to it and you must not block any means of identifying you which it supplies; 3.2 are responsible for providing an appropriate personal computer, modem and any other hardware, software or other equipment necessary to enable you to use the Services; 3.3 must provide true, complete and accurate information in any communication with us and you must notify us immediately of any changes to the information you have provided to us on the Registration Form by e-mailing info@wearefun.com; 3.4 must take all necessary steps to ensure that any password allocated to you from time to time is kept confidential and not used by third parties and notify us immediately if you have any reason to believe that any such password has become known to a third party and/or that a third party is using or is likely going to use such password to access the Services; 3.5 must regularly monitor the postboard for any changes we may make to the Services or these Conditions; 3.6 are responsible for all transactions by you the customer, any orders that are placed are lawfully enforced as a purchase and that you are responsible for making all payments good; 3.7 must not use the Services fraudulently, unlawfully or in connection with or in such a way as to commit any criminal offence; 3.8 must not use the Services to transmit computer viruses, worms or other damaging items, or any advertising material, nor use the Services in a manner which we in our discretion regard as excessive; 3.9 must not use the Services so that all or any part of the Services or the Internet are hindered, damaged or otherwise rendered less effective nor use the Services to the detriment of us or other users of the Services and/or the Internet; 3.10 must not use the Services in any way which might constitute an infringement of any third party rights; 3.11 must not re-sell or attempt to resell any of the Services to any third party; 3.12 must, if a charge has been agreed between us as payable for the provision of certain Services, pay such charge in full, by the agreed date and by the agreed method; 3.13 are responsible for keeping copies of all orders, sent or received by you using the Services and recognize that we are not responsible for doing so; 3.14 must not allow simultaneous access to the Services using the same log-in, nor connect an IP router, any computer capable of IP routing or use any other means for connecting more than one machine on a Local Area Network to the Services; and 3.15 must use any information made available by Funtastic Entertainment, Inc. via the Services solely for your own personal use and you must not allow any third party to store, distribute or commercially exploit such information.
4. Breach of your obligations. 4.1 If you breach any of your obligations as set out in clause 3 above we may terminate the Contract or suspend the provision of the Services indefinitely without prior notice. Not withstanding any termination of the Contract for any reason, you agree to indemnify us immediately on demand against any and all claims, liabilities, damages, costs, expenses and losses incurred by us and arising from the breach by you of these Conditions or otherwise from your use of the Services and/or receipt and/or dispatch of Order.
5. Termination. 5.1 This agreement may be terminated at anytime prior to the Start Date. 5.2 After the Start Date this Agreement may be terminated as follows and the cancellation provisions of the Consumer Protection (Distance Selling) Regulations 2000 (the "Distance Selling Regulations") will not apply to the Service: 5.2.1 By either party serving 28 days notice, unless we terminate without notice pursuant to Clause 4.1. 5.2.2 We may terminate the Contract if you make any voluntary arrangement with your creditors or become bankrupt or become subject to an administration order or an encumbrance, receiver or administrator is appointed over any of your assets or you go into liquidation. 5.3 In the event that Funtastic Entertainment, Inc. agrees to you terminating this Agreement before the expiry of the Minimum Period, you must pay all the Charges due up to and including the date of the expiry of the Minimum Period.
6. Liability. 6.1 We make no warranties, conditions, guarantees or representations as to quality or fitness for a particular purpose of the Services or other warranties, conditions, guarantees or representations whether express or implied, oral or in writing, except as expressly stated in these Conditions. 6.2 We make no warranties and accept no responsibility regarding the order quality of any order or other information provided by us or made available by any third party nor regarding any goods or services purchased or obtained or any transactions entered into using the Services subject to any obligations Funtastic Entertainment, Inc. have under any relevant statute or statutory instrument. 6.3 We do not seek to exclude our liability for any death or personal injury to the extent that it results from negligence. 6.4 We shall be liable to you for any direct physical damage to your property other than death or personal injury to the extent that it results from our negligence up to a maximum of $250,000 in respect of any one event or series of related events or up to a maximum of $500,000 in respect of any series of unrelated events which take place within a single calendar year. 6.5 Except pursuant to sub-clauses 6.3 and 6.4 above, our liability in respect of direct loss suffered by you shall be limited to $250 in respect of any one event or series of related events. 6.6 To the extent that it is reasonable and except pursuant to sub-clause 6.3 above, we shall not in any event be liable for any indirect, special or consequential damages, howsoever arising (including but not limited to loss of anticipated profits) in connection with or arising out of the furnishing, functioning or use of the Services and we shall not be liable for any other damages except as provided in the Contract. 6.7 Except pursuant to sub-clause 6.3 above, no action, regardless of form, arising out of the transactions under the Contract may be brought by you more than two years after the cause of action has accrued. 6.8 This site and the materials contained therein are provided on an "as is" and "as available" basis without warranties of any kind, either express or implied. We disclaim all warranties, express or implied except for those provided by statute. We do not represent or warrant that materials in this site are accurate, complete, reliable, current or error free. We do not represent or warrant that this site or its server(s) are free of viruses or other harmful components. The text and related graphics published on this server could include factual or technical inaccuracies or typographical errors. Neither do we make any warranties, express or implied, or any guarantees in relation to the adequacy, completeness or accuracy of any information found on the sites that are llinked or associated to this site. 6.9 Funtastic Entertainment, Inc. is not responsible for the content of external Internet sites, including those viewed beneath the Funtastic Entertainment, Inc. navigation bar used exclusively on external websites.
7. Variation of the Contract. 7.1 We may vary these Conditions at any time by posting such variations on the postboard or by sending you notice of such variation. By accessing the Services at any time after 2 weeks from our posting the variation or sending the notice you will be deemed to have accepted such variations.
8. Software and Intellectual Property Rights. 8.1 We grant to you a personal non-transferable and non-exclusive license to use any software and documentation provided or made available by us for your use exclusively in connection with the Services. This license shall cease immediately on termination of the Contract. All rights in all software and documentation supplied by us remain the property of us or our licensors. 8.2 You must not and must not permit any other person to copy, modify, alter or adapt any software or documentation provided by us including, but not limited to, translating, decompiling, disassembling or creating derivative works, without prejudice to any applicable statutory rights. 8.3 You may not transfer, assign, distribute, rent, sub- license or lease any software or documentation provided by us. 8.4 You must keep confidential and protect the contents of any software or documentation provided by us. This obligation of confidentiality and protection shall survive the variation, renewal or termination of the Contract but shall not extend to any information which is or comes into the public domain as a result of lawful acts not attributable to the party to whom the information has been supplied.
9. Charges and Deposits. 9.1 The Charges for the Service will be calculated in accordance with the Price List. Charging will begin on the Start Date for the Service. Charges will be calculated in accordance with details recorded by, or on behalf of, Supanet. 9.2 The Customer will pay the charges by direct debit or by credit card within 28 days of the date of Funtastic Entertainment, Inc. invoice. Funtastic Entertainment, Inc. may charge daily interest on late payments at a rate equal to 4% per annum above the base lending rate of Funtastic Entertainment, Inc. or Wells Fargo, Inc., Well Fargo of Cleveland, Well Fargo of Ohio, Wells Fargo LLC, Wells Fargo Investments LLC, Wells Fargo Banc N/A or any other Wells Fargo holding companies. 9.3 All Charges will include Federal, State or Local Tax at the applicable rate where appropriate. 9.4 The Customer acknowledges that it may be subject to Funtastic Entertainment, Inc. credit vetting policy procedures. Should the Customer fail to pay the charges for the Service in accordance with paragraph 9.2, Funtastic Entertainment, Inc. may (without prejudice to any other rights and remedies available to Funtastic Entertainment, Inc. under this Contract), at any time terminate the order. In addition, Funtastic Entertainment, Inc. may refer any overdue amounts to a debt collection agency and in such an event an additional administration charge of $200 shall be added to the Customer's account. 9.5 If the Customer disputes any invoice from Funtastic Entertainment, Inc. relating to the Service, it will notify Funtastic Entertainment, Inc. within 28 days giving full written reasons for such dispute and, without prejudice to paragraph 10.6, will not withhold payment of any amount not in dispute. 9.6 The Customer will not be entitled to withhold any payments due to Funtastic Entertainment, Inc. for Charges incurred by an end user where the Customer has allowed that user to sign-on under the Customer's username and password.
10. General. 10.1 The remedies available to us under the Contract shall be without prejudice to any other rights, either at common law or under statute, which we may have against you. 10.2 Any failure or delay by us to enforce or to exercise, at any time or for any period of time, any term of or any right, power or privilege arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect our right later to enforce or exercise it nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege. 10.3 The invalidity or unenforceability of any term of, or any right arising pursuant to, the Contract shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist. 10.4 Any notice or communication required or permitted to be served on or given to either party under the Contract shall be sent by e-mail or sent by recorded delivery mail to the other party at the following address: To us: Funtastic Entertainment, Inc., 1070 Bank St. Painesville, Ohio 44077-3748 ; To you: the address which you specify on the Registration Form or any alternative address which you notify to us by e- mail or in writing at any time and such notice shall be deemed to have been given when actually received or transmitted by us or, if returned marked "gone away" or to the liake effect, on return of such recorded delivery mail. 10.5 The Contract is personal to you and you may not assign, transfer, sub-contract or otherwise part with the Contract or any right or obligation under it without prior written consent from us. 10.6 We shall not be liable to you if the performance of our obligations under the Contract is prevented or hindered due to any circumstances outside our control provided that we shall use our reasonable endeavors to remove or avoid the effects of such circumstances and shall continue performance of our obligations under the Contract without delay whenever such circumstances cease to have effect. Examples of such circumstances include but are not limited to acts of god, civil commotion, riots,floods, drought, fire and government legislation. 10.7 The Contract contains all the terms agreed between us relating to the subject matter of the Contract and supersedes any prior agreements, understandings or arrangements between us, whether oral or in writing, and no representation (unless made fraudulently), undertaking or promise shall be taken to have been given or been implied from anything said or written in negotiations between us prior to the Contract except as set out in the Contract. In particular but without prejudice to the generality of the foregoing you acknowledge that you have not been induced to enter into the Contract by any representation or warranty other than those contained or referred to in clause 6 above. 10.8 In the event of any conflict between the provisions of the Contract and of any document referred to in the Contract, the provisions of the Contract shall prevail. 10.9 The construction, validity and performance of the Contract is governed by the law of the United States of America and the parties accept the jurisdiction of the United States District Courts or United States Local Municipalities. You shall have the right to commence proceedings solely in the United States District Courts, or United States Local Municipalities but we shall have the right to commence proceedings in the courts of United States of America or of the country in which you are resident or which otherwise have jurisdiction in accordance with any international convention.
