Last Updated: March 14, 2025
Effective Date: March 18, 2025

SmartMagic Terms of Use

Application and Scope

These Terms of Use (“Terms”) apply to the website(s) owned, operated, and maintained by or on behalf of ELA Advertising, Inc. dba SmartMagic and its affiliates (collectively, “SmartMagic” or “we” or “us”) and the content, data, software, functionality and tools accessed through SmartMagic’s website (the “Site”).

IMPORTANT: THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS, OBLIGATIONS, AND CONDITIONS OF USE. PLEASE READ THEM CAREFULLY.  BY CREATING AN ACCOUNT OR OTHERWISE USING THE SITE, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE, YOU MAY NOT ACCESS OR USE THE SITE.


You may not access or use the Site if you:
(a) Do not agree to these Terms;
(b) Are not at least 18 years of age or of legal age to form a binding contract; or
(c) Are prohibited from using the Site by applicable law.

Ownership and Use of the Site

SmartMagic owns or licenses the Site, its content, code, and all materials published therein, including newsletters, emails, social media updates, and related content (collectively, "Content"). SmartMagic also owns or licenses various trademarks, graphics, logos, and service names displayed on or through the Site.

Limited License: Subject to your compliance with these Terms, SmartMagic grants you a personal, non-exclusive, non-transferable, revocable license to access and use the Site and Content for your internal or personal use only.

Prohibited Acts: You may not copy, reproduce, modify, distribute, transmit, display, perform, publish, license, create derivative works from, or sell any Content or code from the Site without SmartMagic’s prior written consent.

Disclaimer: EXCEPT AS OTHERWISE NOTED, THE SITE AND CONTENT ARE PROVIDED "AS IS," WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. SMARTMAGIC DISCLAIMS ALL WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

No Guarantee of Access or Accuracy: SmartMagic does not guarantee that the Site will be uninterrupted, secure, or error-free, or that the Content is accurate or complete. You are responsible for verifying Content before relying on it.

Third-Party Links

The Site may contain links to third-party or co-branded websites. SmartMagic provides these links for reference only and does not endorse, control, or assume responsibility for third-party content, security practices, or privacy policies.

SMARTMAGIC IS NOT LIABLE FOR ANY LOSS, DAMAGE, OR HARM ARISING FROM YOUR INTERACTION WITH THIRD-PARTY WEBSITES OR SERVICES. YOU ACCESS SUCH LINKS AT YOUR OWN RISK.

In addition, portions of the Site may be electronically hosted by other third-party service providers. SmartMagic has, unless explicitly indicated otherwise, no control over the content or functionality of those sites and resources. SmartMagic does not endorse, guarantee, or make any representations or warranties regarding any other website, content, or materials or information accessible from any other website.

Children’s Privacy

The Site is not designed or intended to collect information from children under the age of 13. SmartMagic does not knowingly collect or maintain any information from children under the age of 13. The Site is not designed with the purpose of attracting any person under age 13. To respect the privacy of children and to comply with the Children's Online Privacy Protection Act (COPPA), if you are under the age of 18, you should only use the Site with the involvement of a parent or guardian.

Local Regulatory Restrictions

The Site is not directed at any person in any jurisdiction where (by reason of nationality, residence or otherwise) the access to or availability of the Site is prohibited or which would be subject to any restriction, including registration or other requirements within such jurisdiction. SmartMagic reserves the right to limit access to the Site to any such persons. Persons who access the Site do so on their own initiative and are responsible for compliance with applicable law. If in doubt, you should seek independent legal advice.

Accessing and Using the Site

SmartMagic may modify, suspend, or discontinue any part of the Site at any time without notice or liability. You agree to:

  • Use the Site only for lawful purposes and in accordance with these Terms.

  • Ensure anyone acting on your behalf or using your account also complies with these Terms.

Failure to abide by these Terms may result in immediate suspension or termination of your access.

Non-U.S. Users

The Site is operated from the United States. By using the Site, you consent to the collection, transfer, processing, and storage of your information in the U.S. Privacy laws in the U.S. may differ from those in your jurisdiction.

Data Collection

SmartMagic collects and processes data through automatic means (e.g., cookies, web beacons) and user-provided information. By using the Site, you consent to these practices as described in our Privacy Policy.

Accounts

To access and use some portions of the Site, you must create and maintain an account (an “Account”).  Account creation requires you to submit certain personal information which is subject to SmartMagic’s Privacy Policy.  You agree to maintain complete, accurate, and up-to-date information in your Account. You are responsible for all activity or transactions that occur under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. You shall not provide or re-use your Account username or password with unrelated applications, websites, or software. You agree to make any other users assigned access or roles or provided access to your Account aware of these Terms and our Privacy Policy.

SmartMagic reserves the right to deactivate, suspend, or delete any Account at any time for any or no purpose whatsoever. By using an Account, you acknowledge and agree that SmartMagic shall not be liable for any loss of data, content, or functionality resulting from the restriction or termination of Account access by SmartMagic.

Communications

Text Messaging: You may have the option to sign up to receive one or more text messages from SmartMagic for various purposes, including marketing and/or non-marketing purposes (“Alerts”). You understand that by providing your wireless telephone number(s) now or in the future, you consent to being contacted at those numbers or addresses by or on behalf of SmartMagic using prerecorded artificial voice messages and/or automatic telephone dial devices. You understand and agree that providing your wireless telephone number and consenting to receive calls or texts at that number is not a condition of purchase. 

By opting into SmartMagic Alerts or requesting text communications, you consent to receive confirmation messages and notifications regarding SmartMagic service offerings. Message frequency varies based on your requests and associated services. You may cancel at any time by texting “STOP” in response to a message; you will receive a final confirmation. For assistance, text “HELP” for instructions. Standard message and data rates may apply. Message delivery is supported by major U.S. carriers, which are not responsible for delays or failures in message delivery. Texting “STOP” applies only to the specific number and service. For other inquiries, including opt-out rights or support, contact SmartMagic using the contact information provided below. If you change, transfer, or discontinue the mobile number used to opt-in, you must complete the opt-out process prior to doing so. Failure to comply constitutes a material breach of these terms.

YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD SMARTMAGIC HARMLESS FROM ANY CLAIMS, LIABILITIES, OR DAMAGES, INCLUDING VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT (47 U.S.C. §227) OR SIMILAR FEDERAL/STATE LAWS, ARISING FROM YOUR FAILURE TO NOTIFY SMARTMAGIC OF A CHANGE IN THE PROVIDED MOBILE NUMBER.

Email Communications: By providing your email address to us, you consent to receive electronic communications via email. These communications are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing, as permitted under the Electronic Signatures in Global and National Commerce Act (“ESIGN Act”) and applicable state laws. You further consent to the use of electronic records and signatures in place of physical documents. It is your responsibility to keep your contact information, including your email address, current and accessible to receive Communications from us. If you wish to withdraw your consent to receive electronic communications, you may contact us at info@smartmagic.com. Withdrawal of consent may result in the termination of your access to certain features, services, or transactions. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.

We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.

Chatbots and Generative AI Features

The Site may include chatbots and other generative AI tools (“Generative AI Features”), which are subject to the following terms:

  • Nature of AI Outputs: Outputs are for general informational purposes only and should not be relied upon for legal, safety, health, regulatory, or critical decisions. You are solely responsible for evaluating and verifying any Output. Outputs may not be unique and could overlap with content provided to other users. Inputs submitted by you remain your responsibility.

Due to the limitations of generative AI, responses, recommendations, and other information generated by the Generative AI Features (“Output”) may be inaccurate, incomplete, outdated, misleading, or irrelevant to your query. Always verify Output before making purchases, engaging in transactions, or relying on it for decisions. Information generated by Generative AI Features may be inaccurate or outdated and does not constitute an offer or acceptance to sell or purchase any products or services.

  • Sources of Information: Unless stated otherwise, Outputs may be based on data from SmartMagic, manufacturers, suppliers, sellers, third-party AI models, customer reviews, or publicly available sources. These sources are not verified, and any opinions in the Output do not reflect SmartMagic’s views.

  • Prohibited Uses: You may not use the Generative AI Features to create violent, abusive, deceptive, or harmful content, nor attempt to manipulate or bypass safeguards.

  • No Sensitive or Confidential Information: Do not submit sensitive, personal, proprietary, or confidential information to the Generative AI Features. Inputs may be collected and used by SmartMagic to enhance the Generative AI Features, improve underlying models, and further develop the SmartMagic Sites. While you may use Outputs, SmartMagic retains ownership of all Outputs generated.

  • Disclaimer of Warranties: The Generative AI Features are provided “as is” and “as available,” without warranties of any kind, express or implied, including merchantability, accuracy, fitness for a particular purpose, or uninterrupted operation. SmartMagic does not guarantee that Outputs will be error-free, secure, or meet your expectations.

  • Limitation of Liability: SmartMagic will not be liable for: (i) your use or inability to use the Generative AI Features, (ii) inaccurate, incomplete, or erroneous Outputs, or (iii) materials generated by or through the Generative AI Features.

Indemnity

You agree to indemnify, defend, and hold harmless SmartMagic and its affiliates, and their respective officers, directors, employees, agents, licensors, and partners from and against any claim, liability, loss, damage, cost, or expense (including reasonable attorneys’ fees) arising out of or related to:

  • Your use or misuse of the Site;

  • Your breach of these Terms;

  • Your violation of any law or the rights of a third party; or

  • Any User Content or information you submit or transmit through the Site.

Limitation of Liability

No Consequential or Indirect Damages

EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL SmartMagic OR ANY OF ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, LICENSORS AND PARTNERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT A PROPOSED DEFENDANT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

Maximum Liability

EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL SmartMagic OR ANY OF ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, EMPLOYEES, LICENSORS AND PARTNERS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS THESE SMARTMAGIC TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS YOU PAID TO SmartMagic PURSUANT TO THESE TERMS IN THE TWELVE MONTHS PRECEDING THE ACCRUAL OF THE CLAIM.

This extends to your downloading, uploading, or submission of any materials, data, text, images, video or audio from or to the Site, including but not limited to any issues caused by viruses, bugs, or any computer system, phone line, hardware, software or program malfunctions, or any other errors, failures or delays in computer transmissions or network connections. In the event of any problem with this Site, you agree that your sole remedy is to cease using the Site.

Severability

If any competent legal authority determines any part of these Terms is illegal or unenforceable, then such part will be eliminated and the remainder of these Terms will remain in force and effect and the unenforceable part shall be deemed to be modified solely to the extent necessary to make it enforceable.

Termination

SmartMagic may permanently terminate or temporarily suspend all or part of your access and rights to the SmartMagic Site at any time without notice to you. 

Choice of Law

These Terms, its subject matter and its formation, and any related non-contractual disputes or claims, are governed by the laws of California, without regard to choice or conflict of law principles of any jurisdiction. This Choice of Law provision applies only to the interpretation of these Terms and is not intended to create any other substantive right to non-Californians to assert claims under California law or bring claims in California courts whether that be by statute, common law, or otherwise. These provisions are only intended to specify the use of California law to interpret these Terms, and these provisions shall not be interpreted as generally extending California law to you if you do not otherwise reside in California.

Intellectual Property

You acknowledge and agree that SmartMagic’s (i) patents, copyrights, trademarks, service marks, trade secrets, Content and other intellectual property (collectively, “Intellectual Property”) in and on the Site are solely SmartMagic’s property, and (ii) nothing in these Terms shall confer in you any right of ownership or license rights in our Intellectual Property or the Intellectual Property of SmartMagic’s licensors or suppliers. In addition, you shall not now or in the future contest the validity of our Intellectual Property. Without limiting the previous sentence, the Site, including without limitation all text, graphics, logos, buttons, icons, images, audio clips, and computer programs, are the property of SmartMagic or its licensors or suppliers, and are protected by U.S. and international copyright, trademark and other laws, regulations or treaties. The compilation (meaning the collection, arrangement, and assembly) of all Content associated with the Site is the exclusive property of SmartMagic and protected by U.S. and international copyright law. Any unauthorized reproduction, modification, distribution, transmission, republication, display, or performance of the software or the content through our Site is strictly prohibited.

Subject to your compliance with these Terms, SmartMagic grants you a personal, non-exclusive, non-transferable, revocable, limited license to use the Site solely for your personal or internal use and subject to the condition that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in, or otherwise transfer any right in or access to the Site, or any other content available via the Site. All rights not expressly granted to you in these Terms are reserved and retained by SmartMagic.

User Content and Standards

If you provide us with any text, graphics, photos or other materials or content (“User Content”), you grant us a non-exclusive, perpetual, transferable, irrevocable, assignable, royalty-free, fully paid up, sub-licensable right and license to use, reproduce, distribute, create derivative works from, publicly perform, display, store, digitally perform, make or deliver digital audio transmissions, encode, transcode, publish (online, through the Site, on any other website(s), as well as through mobile channels, and offline, in print, radio, television or elsewhere), make, have made, sell, offer for sale, import and commercialize User Content, or any portion thereof, in any manner and context, in any way, in any and all media now known or hereinafter developed and on any device(s), whether or not portable, wired, or wireless, without limitation, throughout the universe. You further agree to waive your right to be identified as the author of User Content and your right to object to derogatory use or treatment of such User Content. If SmartMagic does decide, in its sole discretion, to attribute User Content to you, you hereby grant SmartMagic the right to use your name (and/or any user name), image, likeness, and/or photo with respect to such attribution, and you waive any claims (including, without limitation, any privacy or publicity rights claims) with respect to such use of your name, image, likeness and/or photos. You hereby agree to waive all claims of moral rights associated with being the author of User Content, and to consent to SmartMagic doing all acts that would otherwise constitute an infringement of your moral rights, as well as waive the right to inspect or approve the finished video, photograph, sound track, web site, advertising copy or printed matter that may be used in conjunction therewith or to the eventual use in any media that it might be applied. The rights you grant above are irrevocable during the entire period of the protection of your intellectual property rights associated with such User Content. You agree that SmartMagic (i) is not under any obligation, whether of confidentiality, attribution or otherwise, and will not be liable for any use or disclosure of any User Content; (ii) is under no obligation to post, display or otherwise use any User Content; (iii) has no obligation whatsoever to provide you any compensation for the use or display of your User Content or otherwise from the exercise of the rights granted under this Section, even if SmartMagic receives compensation therefrom; (iv) has the right (but not the obligation) to monitor the User Content that you or third parties post, and to alter or remove any such User Content; and (v) has the right to disclose User Content and the circumstances surrounding its transmission to any third party in order to operate the Site, to protect ourselves and third parties, and to comply with legal obligations or governmental requests.

You are prohibited from posting any libelous, obscene, defamatory, offensive, hateful, sexually explicit/pornographic, violent, promoting of discrimination, misrepresentative of actual identity, or other materials that would violate any laws or be deemed inappropriate by SmartMagic. You shall be solely responsible for your own User Content and the consequences of posting or publishing it. SmartMagic may take any action SmartMagic reasonably deems necessary to cure or prevent any violation of these standards, including removal from this Site. In addition, SmartMagic will fully cooperate with law enforcement authorities requesting us to disclose the identity of any such individuals.

You represent and warrant that any information you provide to us, to other users, or to visitors, including but not limited to User Content, (a) is not false, inaccurate, misleading, obscene or defamatory; (b) is not fraudulent; (c) doesn’t involve the sale of counterfeit or stolen items; (d) doesn’t infringe any third party’s copyright, patent, trademark, trade secret, rights of publicity or privacy, or other right; (e) is yours or you have the necessary licenses, rights, consents, and permissions to such information and to grant the rights and licenses to SmartMagic under all patent, trademark, trade secret, copyright or other proprietary or intellectual property rights in and to any and all such information in the manner contemplated in these Terms; (f) doesn’t violate any law, statute, ordinance or regulation, including without limitation those governing consumer protection, unfair competition, anti-discrimination or false advertising; and, (g) doesn’t contain any viruses or any programming that is intended to damage, interfere with, intercept or expropriate any system, data or personal information; and (h) is not intended to circumvent or violate the letter and spirit of these Terms and the lawful functioning of SmartMagic’s websites.

You further represent and warrant that you have the written consent, release, and/or permission of each and every person identified in any information you provide, including but not limited to User Content, to use the name or likeness of such person or, if such persons are minors, the written consent, release, and/or permission of such minor’s parent or legal guardian.

By submitting ideas, suggestions, documents, and/or proposals (“Contributions”) to SmartMagic, you acknowledge and agree that: (a) your Contributions don’t contain confidential or proprietary information; (b) SmartMagic isn’t under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) SmartMagic shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media now known or later developed and throughout the universe; (d) SmartMagic may have something similar to the Contributions already under consideration or in development; (e) your Contributions, including any intellectual property rights therein, automatically become the property of SmartMagic without any obligation of SmartMagic to you; and (f) SmartMagic is free to use any ideas, concepts, or techniques that you send SmartMagic for any purpose, including but not limited to, developing and marketing products that incorporate such ideas, concepts or techniques; and (g) you aren’t entitled to any compensation or reimbursement of any kind from SmartMagic under any circumstances.

General Terms

Headings. Headings in Terms are inserted solely for convenience and are not intended to affect the meaning or interpretation of these Terms.

Electronic Records and Signature. You agree that an electronic signature is the legal equivalent of a manual signature, and that, if applicable, selecting a button or other mechanism indicating consent to these Terms constitutes your electronic signature.

Entire Agreement. These Terms constitute the final, complete, and exclusive agreement between you and SmartMagic regarding your access to and use of this Site. These Terms supersede all prior or contemporaneous agreements, communications, and understandings, whether written or oral, relating to the subject matter herein, except as expressly provided below. No waiver, modification, or amendment of these Terms shall be effective unless made in writing and signed by an authorized representative of SmartMagic.

Relationship of the Parties. For all purposes under these Terms, you and SmartMagic will be and act as an independent contractor and will not bind nor attempt to bind the other to any contract.

No Third-Party Beneficiaries. There are no intended third-party beneficiaries to these Terms, and it is the parties’ specific intent that nothing contained in these Terms will give rise to any right or cause of action, contractual or otherwise, in or on behalf of any third party.

Injunctive Relief.  You agree that any violation or threatened violation of these Terms may cause irreparable injury to SmartMagic, entitling SmartMagic to seek injunctive relief in addition to all legal remedies.

Assignment. You may not assign, delegate or otherwise transfer your account or your obligations under these Terms without the prior written consent of SmartMagic. SmartMagic has the right, in its sole discretion, to transfer or assign all or any part of its rights under these Terms and will have the right to delegate or use third party contractors to fulfill its duties and obligations under these Terms and in connection with the Site. 

Notices. All notices will be in writing. SmartMagic’s notice to you via email, regular mail or notices, posts, or links on the Site shall constitute acceptable notice to you under these Terms. Service of notice will be deemed given on the date of receipt if delivered by email or on the date sent via courier if delivered by post.

Admissibility. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Severability. In the event that any provision of these Terms determined to be illegal or unenforceable, that provision will be limited or eliminated so that these Terms will otherwise remain in full force and effect and enforceable.

Jurisdiction and Venue. All claims arising out of or relating to these Terms will be brought exclusively in the federal or state courts of Orange County, California, USA.

Updates to Terms and Conditions

SmartMagic may modify these Terms at any time with or without notice to You. Your continued use of the Site will be deemed as acceptance of any such new terms and conditions. 

Contact Us

You may contact us at:

Email: info@smartmagic.com
Mail: One Park Plaza, Suite 600 PMB 496, Irvine, CA 92614