Terms and conditions
Magic Memories and our agents, directors, officers, shareholders, employees and subcontractors (“we” or “us”) operate using the following terms and conditions (“Terms”). By using our website, the SmileFlingr app, or any third party website that uses our technical, physical, or procedural systems (collectively with our website and the SmileFlingr app “our Platforms”), you agree to these Terms.
We reserve the right to deny the ability to upload content or to delete content at our discretion. We also reserve the right to suspend or terminate any account at our discretion. In taking any of these actions we are not required to provide any party with notice. You agree that in taking these steps we will not incur liability to you or any other party.
These Terms set out rights and obligations, in relation to your use of our Platforms and any goods, services, or content accessible through our platforms. Please take time to read and understand these Terms before using our Platforms.
By using one or more of our Platforms, you consent to these Terms, regardless of the extent of your use or communications to the contrary. We will change these Terms from time to time with immediate effect. The Terms will be changed by posting the new version to this site, we recommend regularly reviewing this policy if you use our Platforms. If you do not wish to be bound by any of the Terms please cease using our Platforms. From time to time we may add, remove, and change products and services available on our Platforms. These Terms will apply regardless of these, or any other changes.
You agree to comply with any order or request we give you in relation to your use of our Platforms. We may vary any or all of these terms in individual cases but are in no way obliged to do so. Any such variation will not be deemed to confer rights on any party for the creation, maintenance, or altering of existing or future variations.
2. Your information
Where we request information from you, you agree to provide us with information that is accurate at the date you provide it and, to your knowledge, will remain accurate. If you become aware that information you have supplied to us is or will become inaccurate, you will update this information as soon as reasonably possible. You can do this either through your user account on one of our Platforms or by contacting us. You acknowledge that, if we need to contact you, we will do so via the information with which you provide us. You therefore accept that you are responsible if we are unable to contact you due to a lack of accurate information.
Even if we store information about you (including payment details) we may still require you to provide the same or further information when using our Platforms. If we reasonably believe any of the information you provide to us is expired, invalid, or incorrect, we reserve the right to suspend or terminate your account at any time. For security or other reasons, we may require you to change your password or other information regarding access to our Platforms; however, we will never ask you for your password. You are solely responsible for maintaining the confidentiality of your password, access details, and any additional identifying information.
You consent to us treating everything done through your account and any associated contact details as being done by you. There is a limit of one account per natural person. We do not guarantee the storage of your information. We may be required by law or other obligations to delete your information, and you accept that we are not liable to you or any other party in such an event.
We provide you with the ability to upload and access images through your account. This service is to allow your creation and purchase of products bearing these images, and you agree not to store images for any other purpose or to upload images by any automated or scripted means. We do not currently limit the volume of images you are able to store with your account, however, we reserve the right to introduce such a limit in the future. We do not guarantee that an image you upload will be able to be used in conjunction with our products. We do not guarantee the storage of your images, and you should maintain backups of these images.
We reserve the right to make changes to the images you store with your Account to aid in their storage. These changes may include, without limitation, compression, down-scaling, and changing the image’s format. We do not guarantee that this process will not reduce the image quality or suitability for use on products.
4. User rules
Images and any other material (such as text) uploaded, posted, contributed, distributed, communicated, transmitted or linked-to by you in connection with our Platforms, as well as images featuring you, are considered "User Content" for the purposes of these Terms.
You agree that any user content with which you interact in any way features only you and/or persons who consent to their featuring in accessed User Content.
You agree that your User Content does not:
contain anything which contravenes, or advocates or assists the contravening of any applicable law or regulation;
contain anything which infringes anyone’s copyright or any other rights, including, without limitation, trademarks, and duties of confidentiality;
contain anything which satirises, parodies, or in any way casts in a negative light, the business, intellectual property, staff, associated persons, partners, products, or services of either us or any entity whom we deem to be warrant protection under this clause;
contain anything which is inaccurate, misleading, offensive, harmful, threatening, defamatory, pornographic, promoting discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or which may result in hatred or violence against any person or group;
contain anything which interferes with the normal operation of any computer or software, or which accesses system data or personal information without authority, including without limitation, a virus, Trojan horse, or worm;
contain anything which will harass, upset, embarrass, or alarm any person;
contain any personal information about another person without their permission; and
contain anything which in any way misrepresents the user's identity or impersonates any person or organization;
You agree not to use our Platforms in any way connected to the sending of unsolicited messages, the collection of information of any kind about users, or the facilitation of activities benefiting one or more of our competitors. You agree not to use any information regarding other users that is accessible through the Services except as expressly permitted by these Terms.
Though User Content contravening these Terms is forbidden, we do not control or regularly monitor the use of our Platforms. It is possible that User Content contravening these Terms may be accessible through our Platforms. We are not responsible for such User Content, but if you become aware of any such User Content on one or more of our Platforms please contact us by clicking here.
You can cancel your account at any time by contacting our customer support team. You may be asked to provide further proof that you are the holder of the account. This is a permanent process and we do not guarantee that your account will be able to be reactivated. Please consider the decision carefully. We reserve the right to delete your User Content or account at any time at our discretion. If your account is terminated because you have breached these Terms, we may prohibit you from establishing another account. Where an account is cancelled, lapses or is terminated, we are entitled to close the account and entitled (but not obliged) to delete all User Content associated with that account. Your obligations and our rights under these Terms survive the termination and deletion of your account.
If you share any User Content, communication, or access code, you consent to the receiver of any such material being able to purchase and further communicate the material.
5. Terms of purchase
A contract between you and us for the purchase of a product or service is created by the completion of the following process:
you place the order for one or more products or services on one of our Platforms by pressing an order confirmation button at the end of the checkout process;
we then take payment for your order by means of your nominated payment method;
after payment, we send you a confirmation email detailing your order; and
sometime after your order, we will transport the product or products to you.
You agree that by confirming your order, you agree to purchase the products and/or services you have selected at the price stated.
You agree that we only accept your order when we transport the product and that any communication prior to this point is acknowledgement of the receipt of your order. You agree that we may refuse your offer at any point before shipping the product or products.
You agree that we may cancel an order at any point in time (including after transporting the product or products) if:
your order breaches any applicable laws or regulations;
your order breaches these Terms;
your order uses User Content infringing these Terms;
your order uses User Content which is corrupted, technically unsupported or inadequately pixelated;
the product or products you order are unavailable;
we do not obtain authorisation for your payment; or
a relevant pricing or product description error is identified.
If your order is rejected, we will contact you to confirm this and reverse the payment you have made for that order.
Magic Memories' digitally downloaded products are not eligible for refunds, so by purchasing, you are agreeing that you have checked any available previews, are satisfied with the product, and agree to waiving your right to a refund. Please contact our Customer Service team if there are any issues with your order.
6. Cancellation policy
In this section, a product is considered a “Standard Product” unless it involves User Content, in which case it is a “Personalised Product”. You may cancel a contract for the purchase regarding a Standard Product by notifying us of the cancellation within 14 days of the day the Standard Product is delivered. This notification can be by email or by delivery. You may use our standard from here, which lists our posting and email details. You must also return the unused Standard Product to us and pay the cost of returning the product to the relevant address. We will refund the purchase price you have paid for the product and its standard delivery charges within 14 days of its return. However, if the value of the product has been reduced by any handling beyond what is necessary to check whether the product is as expected, we may reduce the refund to proportionally.
We do not allow cancellation of orders relating to Personalised Products and we do not allow orders to be amended after they are placed. Please take care in placing an order for any Personalised Products.
7. Intellectual property
By uploading, contributing, appearing in, or communicating User Content you expressly grant to us a non-exclusive, royalty-free, transferable, irrevocable licence to use, reproduce, adapt, distribute and communicate to the public that User Content worldwide through any medium. This licence will survive any termination of these Terms or any relevant account. Note that we may modify User Content in order to conform it to the requirements of a product or one of our Platforms. You acknowledge that all copyright, trademarks, and other intellectual property rights in and relating to our Platforms are owned by, or licensed to, us. You may use and access our Platforms and User Content only in accordance with these Terms. You will not copy, distribute, show in public or create any derivative work from our Platforms, or any of the material which is found on our Platforms (including without limitation User Content) unless properly licensed to do so by us. You will not use our Platforms (or copy or use any material found on our Platforms) for any commercial purpose. You will not remove any copyright, trademark, or other intellectual property notices from material taken from our Platforms. You will not access our Platforms by automated means, regardless of purpose.
8. Liability, indemnity, and responsibility
To the greatest extent permitted by law, you release us from all liability, including without limitation liability in contract, tort, or otherwise, arising out of or in connection with this agreement, including without limitation, User Content and your use of our Platforms. You agree that we, our agents, directors, officers, shareholders, employees and subcontractors will not be liable to you or anyone else, whether in contract, tort or otherwise for any loss of revenue, data, business, anticipated savings, profits, opportunity, goodwill or reputation, or for any business interruption, or for any indirect, special or consequential loss damage, costs or other claims. You agree that, to the extent permitted by applicable law, our liability in any matter, where not entirely excluded, shall be limited to the lesser of the total purchase price of goods purchased by you in relation to the matter and five thousand (5000) New Zealand Dollars.
To the greatest extent permitted by law and except as expressly stated elsewhere in these Terms, all representations, warranties, conditions, and other terms, whether express or implied, are excluded. We will not be liable for any failure to perform our obligations under these Terms. The provisions of this section shall survive the termination or expiry of these Terms.
You agree that we are entitled to do any act in relation to our Platforms or User Content if we determine it to be desirable or if we are required or advised to do so in compliance with an order, instruction or request of any governmental, regulatory, court, or other competent authority. You agree that any such act will not incur any liability on our part to you or any other party. Our Platforms are provided as is and we do not guarantee that they will meet your requirements. There may be times when the operation of our Platforms is adversely affected, or becomes inaccessible, as a result of technical difficulties or other matters. You acknowledge that we cannot guarantee continuous, uninterrupted or secure access to our Platforms or any of the material that appears on it. If we are conducting a period of planned unavailability of one or more of our Platforms, we will endeavour to inform users of this by a notice that appears on one or more pages of our Platforms.
You acknowledge that we use third party organisations to help us in the provision of products and services to you. You agree that we are not, to the maximum extent permitted by applicable law, liable for any actions or omissions of these third parties regardless of the nature of their actions or omissions.
You indemnify us against all liabilities, claims and expenses that may arise out of or in connection with any breach of these Terms by you or through your account or User Content associated with you or your account.
9. Raising issues
You agree to when you have any issue with us, our platforms, or anything connected to us or our platforms, first notify us of that issue and attempt to resolve it through good-faith negotiation before reporting the issue to any third party. You agree to notify us as soon as reasonably possible if you become aware of actions or omissions by you or any other party that you reasonably believe to contravene these Terms. You agree that any such issue must be notified to us within one (1) year of the date on which it arises and that, if this is not done, any claim based on such an issue is forever barred.
We reserve the right to assign these Terms and any or all of our rights and obligations under these Terms. You may not, without our prior written consent, assign or dispose of these Terms or any of your rights and obligations thereunder.
You must ensure that you comply with all applicable laws and regulations in all actions and omissions relating to this agreement, including without limitation User Content, images that may be viewed, and the products that may be bought. If any party contacts us in relation to User Content or a transaction associated with you, then you agree to provide all reasonable information and assistance we may require in connection with responding to that contact and to provide such information and/or assistance promptly and accurately.
If any part of these Terms is held to be invalid or unenforceable, the remainder shall remain valid and enforceable. Where any part of these Terms conflicts with applicable law that law shall override the relevant part or parts of these Terms only to the minimum extent necessary to remove such a conflict. Our failure to act with respect to a breach of these Terms by you or others does not waive our right to act with respect to subsequent or similar breaches.
These Terms contain your entire agreement with us relating to your use of and access to our Platforms and replace all earlier agreements and understandings with you relating to our Platforms.
The headings to the Clauses are for ease of reference only and do not affect the interpretation or construction of these Terms.
To the greatest extent permitted by law, a person who is not a party to these Terms has no right to enforce any of these Terms.
These Terms, your use of the Platforms and each order and purchase of a product shall be governed by the laws of New Zealand.
Magic Memories Group Holdings Limited is a New Zealand company, though some of our affiliate companies are formed in other countries. If you have a request regarding these Terms, please feel free to contact us at: Customer Support Portal, +64 345 02170, or Te Nuku, Level 2, 43 Ballarat Street, Queenstown, 9300, New Zealand.