Terms and Conditions of Service
Last Revised: October 25, 2019
Welcome to www.magitexdecor.com, the website (“Site”) of Magitex Decor, LLC, a Florida limited liability company, hereinafter sometimes also referred to as “Magitex”, “we”, “us”, or “our”.
IMPORTANT: PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF SERVICE (THESE “TERMS”), CAREFULLY. THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE (BUT ARE NOT LIMITED TO) VARIOUS LIMITATIONS AND EXCLUSIONS, A BINDING ARBITRATION CLAUSE, A CLASS ACTION WAIVER, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
These Terms include not only the following Terms and Conditions of Service, but also incorporate by reference all policies, guidelines, special or supplement terms and conditions of use or service posted by us on the website located at www.magitexdecor.com, any of its subdomains or any mobile application which may be licensed by us to you (“Site”) from time to time(as such terms and conditions of use, policies, notices, guidelines, special, supplemental terms and conditions of use or service may be amended, modified, supplement or restated by Magitex from time to time).
Additionally, our Notice of Privacy Practices (“Privacy Notice”) available at https://www.magitexdecor.com/privacy.html. informs you of Magitex’s collection and use of your information, including your Personal Information as defined in the Privacy Notice, in relation to your use of our Site and/or other related products or services we may make available to you via or in relation to your use of the Site.
Any person who accesses this Site but does not successfully register to become an Magitex Customer is referred to in these Terms as a “Visitor.” Persons who access this Site and successfully register to become an Magitex Customer are referred to as a Customer. Visitors and Customers are also referred to in these Terms as “You”, “you”, “Your”, or “your.”
Your access to and use of this Site or any Services offered on or through this Site is subject to and conditioned upon your acceptance of and your full compliance with these Terms. The Terms are a legally binding agreement, which governs your access to and use of this Site, including any content, feature, functionality or service at any time or from time to time, offered or provided on or through this Site, whether you are simply a Visitor to this Site or an Magitex Customer. By accessing, browsing, submitting any information, to or through, or otherwise in any manner using the Site, and linking to these Terms or by accessing, submitting any information to or through, or otherwise in any manner using any service offered on or though this Site, You acknowledge that you have read and understand, and agree to be bound by and to comply with all of these Terms. If you do not agree to all of these Terms without any modification by you, you are not authorized to and must not access or use this Site or any feature, functionality or service offered on or though this Site.
If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, “you” and “your” will refer and apply to that company or other legal entity. If you do not agree to any of these Terms, you have no right to and may not obtain information from or otherwise continue using the Site. Failure to use the Site in compliance with these Terms may subject you to civil penalties.
We reserve the right at any time or from time to time, to update, modify, revise, amend, supplement, restate, or terminate these Terms or any part thereof for any reason and without notice, and without penalty. The most current version of these Terms can be accessed on the Site by selecting the “Terms and Conditions of Service” link provided on the Site’s home page. You should review these Terms on a regular basis – for instance, each time you access the Site – so you may be apprised of any changes made. Any such termination, revisions or changes shall be binding upon you and effective immediately upon our posting of the revised these Terms or changed Terms on the Site.
The following terms used in these Terms with their initial letters capitalized, and those terms defined in the introductory paragraphs or elsewhere in these Terms, throughout these Terms have the meanings provided. Defined terms may be used in the singular, the plural or possessive form as the context requires:
- “Account” means with respect to Customers, the account created by us on or through the Site for a Customer’s use in connection with the ordering of Magitex Goods.
- “Collective Content” means Magitex Content and Customer Content.
- “Content” means any text, graphics, images, music, software (excluding any Magitex Software), audio, video, information or other electronically stored data.
- “Customer” means a person who completes the Account registration process as described under the “Account Registration” section below and whose Account remains in good standing and has not otherwise been restricted or terminated by Magitex.
- “Customer Content” means all Content that a Customer provides, posts, uploads, publishes, submits, transmits, or makes available on the Site, including but not limited to all such Content provided for purposes of establishing, initializing, modify, or creating an Account.
- “Customer Feature” means any feature or functionality of the Site which Magitex may designate from time to time for use by Magitex Customers for or in connection with the ordering or purchase of Magitex Goods.
- “Magitex Content” means all Content that Magitex makes available through the Site including any Content licensed from a third party, but excluding Customer Content.
- “Magitex Goods” means any merchandise, including textiles, drapery, and upholstery offered for sale or sold by Magitex to Customers.
- “Magitex Software” means any software, html or other code, at any time or from time to time, in whole or in part, comprising the Site or utilized by Magitex through the Site.
- “Governmental Authority” means any domestic or foreign, federal, state, local, provincial, county, or municipal or supra national government or political subdivision thereof, or any agency, instrumentality, subdivision, court, tribunal, commission or other authority of such government or political subdivision, or any self-regulated, private, non-governmental or quasi-governmental organization, body or authority (to the extent that the rules, regulations or orders thereof have the force of Law).
- “Intellectual Property Rights” means, with respect to any thing, material or work (hereinafter, a “Work”): (a) any and all worldwide copyrights, trademarks, trade secrets and any other intellectual property and proprietary rights and legal protections in and to such Work including but not limited to all rights under treaties and conventions and applications related to any of the foregoing; (b) all patents, patent applications, registrations and rights to make applications and registrations for the foregoing; (c) all goodwill associated with the foregoing; (d) all renewals, extensions, reversions or restorations of all such rights; (e) all works based upon, derived from, or incorporating the Work; (f) all income, royalties, claims, and payments now or hereafter due or payable with respect thereto; (g) all causes of action, either in law or in equity for past, present or future infringement based on the Work; (h) all rights corresponding to each of the foregoing throughout the world; and (i) all the rights embraced or embodied therein, including but not limited to, the right to duplicate, reproduce, copy, distribute, publicly perform, display, license, adapt, prepare derivative works from the Work, together with all physical or tangible embodiments of the Work.
- “Law” or “Laws” means, as amended from time to time, any domestic or foreign federal, state, local, provincial, county or municipal or supra national Law (including common law), rule, regulation, statute, treaty, constitution, ordinance, decree, code, proclamation, policy, procedure, guideline, standard, order, judgment, or other legally enforceable requirement enacted, issued, adopted, promulgated, enforced, ordered or applied by any governmental authority.
- “Services” means collectively all services Magitex offers through the Site to Customers and visitors, including Customer Feature, Magitex Content, Magitex Goods Magitex Software, among others.
Additionally, these Terms incorporate by reference those terms and phrases as defined in our Privacy Notice.
II. Acknowledgements and Disclaimers
NEITHER MAGITEX NOR ANY OF OUR THIRD PARTY LICENSORS OR SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY ASPECT OF THE SITE TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. WE HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. THIS SITE AND THE INFORMATION, CONTENT, FILES, DATA OR OTHER MATERIALS CONTAINED ON THE SITE AND OTHER SERVICES PROVIDED BY MAGITEX ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT WARRANT THAT THE SITE WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF HARMFUL COMPONENTS, THAT ANY CONTENT, FILES, DATA OR OTHER MATERIALS (INCLUDING BUT NOT LIMITED TO ANY CUSTOMER CONTENT) UPLOADED TO, DOWNLOADED FROM, OR STORED BY, ON OR THROUGH THE SITE WILL BE TIMELY, ACCURATE, CURRENT OR SECURE, OR WILL NOT BE LOST, CORRUPTED OR OTHERWISE DAMAGED OR IMPAIRED, OR THAT WE WILL BE ABLE TO PREVENT DISRUPTION OF OR TO ANY OF THE SITE OR THAT WE WILL CORRECT ANY DEFECTS.
ALTHOUGH WE TAKE REASONABLE STEPS TO PREVENT THE INTRODUCTION OF VIRUSES, WORMS, TROJANS OR OTHER MALICIOUS SOFTWARE (“MALWARE”) OR OTHER DESTRUCTIVE MATERIALS TO THE SERVICES, MAGITEX DOES NOT GUARANTEE OR WARRANT THAT THE SERVICES OR MATERIALS THAT MAY BE DOWNLOADED FROM THE SERVICES DO NOT CONTAIN SUCH CONTAMINATING OR DESTRUCTIVE PROPERTIES.
IN NO EVENT WILL MAGITEX BE LIABLE FOR DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES OR ANY INFORMATION, GOODS OR SERVICES OBTAINED THROUGH THE SERVICES, INCLUDING DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES (EVEN IF MAGITEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMITTED BY LAW.
III. Modification of Site or Terms
Magitex reserves the right, at its sole discretion, to modify the Site or to modify these Terms at any time and without prior notice, and without penalty. If we modify these Terms – which may include updating, revising, amending, supplementing, restating, or terminating these Terms – we will either post the modification on the Site or otherwise provide you with notice of the modification. Please also refer to the “Last Updated” date indicated at the beginning of these Terms. Through continued access or use of the Site after Magitex has posted a modification thereon or has provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, you must discontinue use of the Site.
IV. Customer Eligibility
The use of this Site is intended for persons who are 18 years of age or older. Any access to or use of any Customer Features, or the Site by anyone under 18 is prohibited. By registering on the Site as a Customer, or accessing or utilizing any Customer Features on or through the Site you represent and warrant that you are 18 years of age or older. Persons under the age of 18 may not avail themselves of any purchase any Magitex Goods, unless accompanied by an eligible Customer over the age of 18. In any event, by becoming a Customer, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by all of these Terms. Without limiting the foregoing, Magitex Goods and the use of the Site to order or purchase any Magitex Goods are not available to Customers or any other person or entity who or which do not have a valid Account or who or which have had their Account temporarily or permanently deactivated.
A. Registration, Profile, and Customer Content
In order to become a Customer and to access Customer Features, purchase Magitex Goods, or utilize or enjoy other Services via the Site you must register to create an Account. You may register directly via the Site or as described in this Section.
As a Customer, your Account and your Account profile page will be created based upon the Customer Content you provide to us. In some instances, Magitex will provide you, either in person or by electronic means, information necessary to establish your Account. Any information that you provide, publish or post to or through the Site (including any profile information you provide) or send to other Customers or Visitors (including via any feedback, text, any email feature, or through any Magitex-related Facebook, Twitter or other social media posting) will be considered Customer Content. You consent to us using your Customer Content to create an Account that will allow you to utilize features of the site reserved for our Customers, in connection with their ordering and purchase Magitex Goods. Our collection and use of personal information in connection with the Site is as provided in Magitex’s Privacy Notice located at www.magitexdecor.com/privacy.html.
As a Customer, you are solely responsible for your Customer Content and your interactions with other members of the public, including Customers. You agree to provide and maintain accurate, current and complete information and that Magitex and visitors to the Site may rely on your Customer Content as accurate, current and complete.
As a Customer, you are the sole authorized user of your Account, and are responsible for maintaining the confidentiality of any password provided by you or Magitex for accessing Customer Features. You are solely and fully responsible for all activities that occur under your Account (even if that content or activity occurs from other individuals who have accessed the Sites and other Services through your account), and Magitex expressly disclaims any liability arising from the unauthorized access or use of your Account. If at any time you suspect that any unauthorized party may be using your Account or you suspect any other breach of security, you agree to notify us immediately.
In some cases, Magitex utilizes third party user account management providers, (such as Salesforce), to manage your Account. If you are directed to any such Magitex third party account management provider you may be subject to terms and conditions governing use of that third party’s service and that third party’s personal information collection practices.
B. Limitation, Suspension, Termination, and Cancellation of Accounts
As a Customer, you may not have more than one (1) Account with Magitex at any given time. You must (and you agree to) provide accurate, current and complete information as requested or prompted during or in connection with the Account registration process, and to promptly update such information to keep it accurate, current and complete. Magitex reserves the right to suspend, restrict, or terminate your Account and your access to the Customer Features if you provide any false or misleading information, or otherwise violate any of these Terms. You are responsible for safeguarding your password and agree not to disclose your password to any third party. You have sole responsibility for any activities or actions conducted under your Account, whether or not you have authorized such activities or actions. You are obligated to immediately notify Magitex of any unauthorized use of your Account.
Magitex may, in our sole discretion and without thereby incurring any liability to you or otherwise, with or without cause, with or without prior notice and at any time, limit, suspend, deactivate or cancel your Account and/or deny you access to the Customer Features or Magitex Goods. If we exercise our discretion under these Terms to do so, any or all of the following may occur with or without prior notice or explanation to you: (a) your Account will be deactivated or suspended, your password will be disabled, and you will not be able to access the Customer Features or your Account; and (b) any pending or future orders for Magitex Goods will be immediately terminated and refunded, if applicable. Upon termination, deactivation, or suspension of your Account, you are required to immediately cease all use of the Customer Features and may not re-register under any other Account.
You may cancel your Account at any time via the “Cancel Account” or other similarly designated feature of the Site, or by notifying us thereof by e-mail at email@example.com or by contacting us by telephone at (305) 470-9282.
C. Magitex Communications
By becoming a Customer, you acknowledge that we may from time to time and as needed communicate with you by various means, including via e-mail, text message, telephone calls, and push notifications to the telephone number you provide to us, in relation to your use of the Site, the status of your Account, your purchase or use of Magitex Goods or other Services, among others. Please note that this may include communications generated by automatic telephone dialing systems or other methods and systems, which will deliver prerecorded messages sent by or on behalf of Magitex, its affiliated companies or other Customers, including but not limited to: operational communications concerning your Account, use of Customer Features, Magitex Goods, and updates concerning new and existing features on the Magitex Site.
In other instances, we will seek your consent to receive our communications before contacting you by asking you to “opt-in” to such communications. This may include receiving our newsletter, promotions and promotional materials provided by Magitex or third parties, and updates and news concerning Magitex.
Where we have already received your opt-in consent to receive certain communications, IF YOU WISH TO OPT-OUT OF PROMOTIONAL EMAILS, TEXT MESSAGES, OR OTHER SUCH “OPT-IN” COMMUNICATIONS, YOU MAY OPT-OUT BY FOLLOWING THE UNSUBSCRIBE OPTIONS THAT ARE PROVIDED TO YOU ON THE SITE OR VIA THE COMMUNICATION, IF APPLICABLE (e.g. the “unsubscribe” button in our promotional emails). Standard text messaging charges applied by your telephone phone carrier will apply to text messages we send.
VI. Orders, Returns, and Other Financial Terms
A. Placing Orders
Once you have successfully registered on the Site as a Customer and your Account has thereby been established, you may place orders for Magitex Goods through a Customer Feature on the Site. In some cases such Customer Features will provide Customers with a means to select and customize Magitex Goods - for example by selecting style, cut, material, pattern, and the like. We have made reasonable efforts to accurately display the colors and styles of the Magitex Goods that appear on the Site. However, we cannot guarantee that your computer monitor’s display of any color or style will be accurate.
Magitex reserves the right, in its sole discretion and at any time after receiving any order from you for any Magitex Goods, to accept, refuse, place on hold or cancel any order you submit to us, including the right to limit any quantities of Magitex Goods you may wish to purchase. Once we receive your order, we’ll provide you with an e-mail confirmation at the email address you provide for that purpose when you register on the Site for an Account. Your receipt of an order confirmation does not signify Magitex’s acceptance of your order or a confirmation of our offer to sell; but simply an acknowledgement that we received your order.
After receiving your order, Magitex may contact you to request clarification, additional or missing information regarding your order or your Account, including measurements - even pictures - or customizations. It is your responsibility to deliver to us in a timely manner all additional information related to your order we may request. Magitex reserves the right, in its sole discretion, to place your order on-hold or even cancel it if any requested information is not received in time or is incomplete. Orders which we place on-hold may at any time thereafter be cancelled by us if there is any missing information which we require. With respect to any such orders which we cancel for which you have, at the time of cancellation, already have made payment for the Magitex Goods in question, we will issue a credit or refund according to these Terms.
In the event Magitex makes a change to or cancels your order, we will attempt to notify you by contacting the contact email address or telephone number which you provide to us as part of your registration for and Account on the Site.
If you want to make any changes to an order, please contact us as soon as possible, but in any event within 24 hours after submitting your order, for help. Please note however that we do not guarantee that we will be able to make any changes to your order, so make sure that you double check your selections and customizations before placing your order. You may not make any changes to any of your orders at any time following the expiration of the first 24 hours of first submitting such order to us.
B. Payments and Authorizations
You agree to pay Magitex for all fees and charges associated with your purchase of Magitex Goods. All fees and charges are due in full at the earlier of time of purchase or confirmation of your order.
In connection your use of the Customer Features (including during your Account registration), you may be asked to provide customary billing information such as name, billing address and credit card or other payment information either to Magitex or its third party payment processor(s). You agree to pay Magitex for any purchases of Magitex Goods made in connection with your Account or your use of any of the Customer Features, or otherwise provided to you or on your behalf, in each case by one of the payment methods from time to time described on provided for on the Site, including the charging of the credit card account. You hereby authorize the payment and collection of any and all such amounts by the charging of the credit card, or via such other payment method provided for under your Account, You acknowledge and agree that Magitex may, in its sole discretion, directly charge such credit card account (or directly avail itself of such other payment methods) or may utilize the services of third party online payment processors or others to do so. If you are directed to any Magitex third party payment processor(s), you may be subject to terms and conditions governing use of that third party’s service and that third party’s personal information collection practices.
In furtherance of your use of the Customer Features, you understand and agree that Magitex reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card or other payment method for any fees or charges for or associated with any Magitex Goods or (ii) charge your credit card or other payment method a nominal amount, not to exceed one dollar ($1) per verification, or a similar sum in the currency in which you are transacting, to verify your credit card or other payment method. As a general rule, Magitex will collect any fees or charges due once all necessary order information has been obtained by Magitex from the Customer and Magitex confirms that the Customer’s order is complete. In our discretion such fees and charges may instead be collected by us at an earlier or later point. Magitex does not control, and is not responsible for, any fees or charges that may be charged to a Customer by her or his bank, financial institution, or payment provider, with respect to Magitex’s collection of fees or payments, and Magitex expressly disclaims all (and you agree that Magitex will have no) liability in this regard.
Magitex will take reasonable action to rectify any payment processing errors that we become aware of. These steps may include crediting or debiting (as appropriate) the same payment method used for the original payout to or payment by you.
C. Pick-Up and Shipping
You may make arrangements with Magitex to pick up your purchases of Magitex Goods at oaur Miami warehouse location. In most, but not all cases, orders for Magitex Goods are made available for pickup within one hour of confirmation of your order. Please note however that we do not guarantee the timing of pickup and, therefore, encourage you to contact Magitex to confirm that your order is indeed available for local pickup.
In other cases, you may elect to have Magitex ship Magitex Goods directly to you. Shipping charges and expected delivery dates may be displayed through the Customer Features at the time of your order, or may appear in an order confirmation e-mail. Based on our service locations and your shipping address, we determine the shipping carrier for your order. Carriers that may be used include, but are not limited to, the U.S. Postal Service (USPS), United Parcel Service (UPS), and FedEx. Occasionally, we may send your order in two or more shipments.
Magitex takes pride in its Magitex Goods and desires that all Customers are satisfied with their purchase. If for any reason you are unsatisfied with your Magitex Goods, you may return the Magitex Goods or have them altered. All return claims must be received in writing not more than fifteen (15) days from date of receipt of your order and any returned items must be received by Magitex within thirty (30) days from the date of receipt of your order. No claims are allowed if your Magitex Goods have been cut or altered in any manner. There shall be no credit for labor or installation. In most cases, returns should be made in-person at one of our locations; however, in some cases we may permit you to ship a return to us at your expense. At Magitex’s sole discretion we may provide you with a pre-paid shipping label, although we are no obligated to do so. Refunds generally will be processed within three (3) days of receipt of the returned Magitex Goods. Refunds will be credited to your original payment method. It may take up to seven (7) for any applicable refund to be credited to your applicable payment method.
Magitex, at its sole discretion, may from time to time, make special offers or promotions (“Promotions’) available to some but not all Customers, or to prospective Customers. Promotions, which we may from time to time offer to our Customers may not be the same and different Customers may be offered different Promotions. Furthermore, prospective Customers may also be offered different Promotions. No Promotion, unless and then only to the extent expressly made to you specifically, shall have any bearing whatsoever on your Account, these Terms or your relationship with Magitex. Any promotional coupon, which we may utilize in connection with a Promotion is applied at the discretion of Magitex, and while Magitex may in connection with a Promotion reduce the cost of certain Magitex Goods, if any, subject to such Promotion, based on an amount or discount value, stated by us in the Promotion, all other fees and charges for or in connection with Magitex Goods, as well as, all shipping and handling (if applicable), and sales tax will still apply and be due to and payable to Magitex.
VII. User Conduct
You understand and agree that you alone are responsible, at your sole cost and expense, for compliance with any and all Laws that may apply to your use of the Site or any feature thereof. In connection with your use of the Site, you must not, and you agree that you shall never do or attempt to do any of the following:
- violate any applicable Law;
- use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other features or services contained in or comprising the Site;
- access or use the Site or any part thereof to use, expose, or allow to be used or exposed, any Magitex Content in any way that is inconsistent with the Magitex Privacy Notice or these Terms; or which in any way otherwise violates any rights of any of Magitex’s Customers or any other person or entity;
- use the Site or any part thereof or any feature or functionality accessed on or through the Site for any commercial or other purposes that are not expressly permitted by these Terms;
- copy, store or otherwise access or use any information contained on or accessed through the Site for purposes not expressly permitted by these Terms;
- infringe the rights of any person or entity, including without limitation, any intellectual property, privacy, publicity or contractual rights;
- interfere with or damage the Site, or any part thereof or any feature or functionality accessed on or through the Site - whether through the use of viruses, cancel bots, Trojans, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or otherwise;
- use the Site, or any part thereof or any feature or functionality accessed on or through the Site to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
- use the Site, or any part thereof or any feature or functionality accessed on or through the Site for or in connection with the distribution of unsolicited commercial email (“spam”);
- stalk, harass, or bully any other user of the Site;
- register for more than one Account or register for an Account on behalf of an individual other than yourself;
- unless Magitex explicitly permits otherwise, request or book any Magitex Service;
- recruit or otherwise solicit any Customer to participate in a third party services or websites that are competitive to Magitex, without Magitex’s prior written approval;
- impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
- use automated scripts to collect information from or otherwise interact with the Site;
- post, upload, publish, submit or transmit any Content that (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other Intellectual Property Rights, or rights of publicity or privacy, (ii) violates, or encourages any conduct that would violate, any applicable Law or regulation or would give rise to civil liability, (iii) is fraudulent, false, misleading or deceptive, (iv) is defamatory, obscene, pornographic, vulgar or offensive, (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group, (vi) is violent or threatening or promotes violence or actions that are threatening to any other person, or (vii) promotes illegal or harmful activities or substances;
- systematically retrieve data or other content from the Site to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- use, display, mirror or frame the Site, or any individual element within or comprising any part or feature of the Site, Magitex’s name, any Magitex trademark, service mark, trade dress, logo or other proprietary source identifiers, any materials or information, or the layout and design of any page or form contained on a page of the Site;
- access, tamper with, or use non-public areas of the Site, Magitex’s computer systems, or the technical delivery systems of Magitex’s providers;
- attempt to probe, scan, or test the vulnerability of any Magitex system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Magitex or any of Magitex’s providers or any other third party (including another user) to protect the Site; or
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or any feature or functionality thereof.
Magitex at all times has the right to investigate and may prosecute violations of any of the foregoing to the fullest extent of the Law.
Magitex may access, preserve and disclose any of your information if we are required to do so by Law or enforceable legal obligation, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against Magitex, (ii) to comply with a lawful and enforceable request by law enforcement, judicial body, or other public authorities, or in connection with a legal obligation, or other enforceable legal process (for example, court order, subpoena, warrant, etc.), (iii) enforce or administer our agreements with users (iv) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (v) protect the rights, property or safety of Magitex, its users, or members of the public. You acknowledge that Magitex has no obligation to monitor your access to or use of the Site but has the right to do so for the purpose of operating and improving the Site (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the lawful and enforceable order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. Magitex reserves the right, at any time and without prior notice, to remove or disable access to any materials that Magitex, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site.
VIII. Intellectual Property and Customer License Agreement
A. General Intellectual Property Provisions
The Site is protected by copyright, trademark, and other Laws of the United States and foreign countries. You acknowledge and agree that the Site, Services, and Magitex Content, including all associated Intellectual Property rights, are the exclusive property of Magitex and its licensors (hereinafter “Magitex Intellectual Property”). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site or Collective Content. All trademarks, trade names, and source identifiers of Magitex used on or in connection with the Site are trademarks or registered trademarks of Magitex. Trademarks, trade names, and any other source identifiers of third parties used on or in connection with the Site are used for identification purposes only and may be the property of their respective owners.
Nothing in these Terms grants, transfers or conveys, nor may be construed or operate as a grant, transfer or conveyance, to any Customer or any other person of any right, title or interest in or to any of Magitex Intellectual Property therein, including but not limited to any trademark, trade name, service mark or other proprietary identifying symbols used by us from time to time on or in connection with the Site, or any feature or functionality thereof. No Customer or other person may use any of Magitex Intellectual Property without in each case first obtaining our prior written consent, which consent may be withheld in our sole and absolute discretion. All goodwill arising from or incident to any use of Magitex Intellectual Property shall inure exclusively to us or our third party licensors as applicable.
You agree you shall not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, business partners, licensors, licensees or transferees, any patent infringement or other Intellectual Property infringement claim with respect to the Site.
C. Notice of Infringement
Magitex respects Intellectual Property Laws and expects all Customers to do the same. It is Magitex’s policy to terminate in appropriate circumstances the Accounts of Customers who repeatedly infringe or are believed to be repeatedly infringing the rights of Intellectual Property owners. Claims of trademark, copyright, or patent infringement or any other alleged Intellectual Property violations should be sent to Magitex’s designated agent. Please review Magitex’s Intellectual Property Policy, found at https://www.magitexdecor.com/ip.html, for further information.
D. Magitex License
Magitex grants Customers a limited, non-exclusive, non-transferable license, to (i) access and use the Site and any Magitex Software; (ii) access and view any Magitex Content solely for your personal and non-commercial purposes and (iii) access and view any Customer Content to which you are permitted access, solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section. You agree not to use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise to Magitex Intellectual Property, except for the licenses and rights expressly granted in these Terms.
E. Customer Content License
Magitex may, in our sole discretion, permit you to post, upload, publish, submit or transmit Customer Content. By making available any Customer Content on or through the Site, you hereby grant to Magitex a worldwide, irrevocable, perpetual (or for the term of the protection), non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Customer Content on, through, by means of, or to promote or market the Site. Magitex does not claim any ownership rights in any such Customer Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Customer Content.
You acknowledge and agree that you are solely responsible for all Customer Content that you make available through the Site. Accordingly, you represent and warrant that (i) you either are the sole and exclusive owner of all Customer Content that you make available through the Site or you have all rights, licenses, consents and releases that are necessary to grant to Magitex the rights in such Customer Content, as contemplated under these Terms, and (ii) neither the Customer Content nor your posting, uploading, publication, submission or transmittal of the Customer Content or Magitex’s use of the Customer Content (or any portion thereof) on, through or by means of the Site will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary rights or Intellectual Property, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
If you provide any suggested improvement(s) to the Site or any feature or functionality thereof (each a “Suggestion” and collectively “Suggestions”) to Magitex, we will own all right, title and interest (including any Intellectual Property rights) in and to any Suggestion even if the person making the Suggestion has designated the Suggestion as confidential or proprietary. Magitex shall be entitled to use and exploit any Suggestion without restriction. You must, and hereby do, irrevocably assign to Magitex all right, title and interest (including all Intellectual Property rights) in and to all Suggestions (if any) and agree to provide us or our designees with any assistance we may or they may reasonably request or require from time to time to further document, perfect and maintain our rights in any Suggestion.
IX. Third Party Websites, Applications, Links, and Resources
The Site may contain links to or otherwise interface or connect with third party websites or resources, for example SNS (defined above), Salesforce and BluePay or other like payment processors. You acknowledge and agree that Magitex is not responsible or liable for (i) the availability or accuracy of such websites or resources or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Magitex of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products or services on or available from such websites or resources.
X. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, OR ANY FEATURE OR SERVICE ACCESSED OR OFFERED ON OR THROUGH THE SITE REMAINS WITH YOU. SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION VII(E), ALL MAGITEX GOODS ARE WARRANTED AGAINST DEFECTS IN MATERIALS AND WORKMANSHIP UNDER ORDINARY USE FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF RECEIPT. WITH RESPECT TO MAGITEX GOODS, CUSTOMER FEATURES, AND THE ENTIRETY OF THE SITE, MAGITEX EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER MAGITEX NOR ANY OF OUR AGENTS, REPRESENTATIVES, CONTRACTORS OR AFFILIATES, SHALL BE LIABLE TO ANY CUSTOMER, ANY USER, ANY GUESTS OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, FILES, DATA, CONTENT, BUSINESS, OPPORTUNITIES, REVENUES, ANTICIPATED SAVINGS OR OTHERWISE (EVEN IF WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) OR FOR ANY DAMAGES FOR BODILY INJURY OR EMOTIONAL DISTRESS IN CONNECTION WITH THE SITE, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) ACCESS TO OR USE OF, OR THE INABILITY TO ACCESS OR USE, THE SYSTEM OR ANY SERVICE OR ANY PART THEREOF, (II) THE PROVISION OF OR FAILURE TO PROVIDE, OR ANY INTERRUPTION OF, ANY MAGITEX SERVICE OR ANY OTHER SERVICE, (III) ANY INFORMATION, SOFTWARE, PRODUCT, SERVICE, DATA, FILE, CONTENT, OR MATERIALS STORED ON, OBTAINED THROUGH, UPLOADED TO OR DOWNLOADED FROM THE SYSTEM OR ANY SERVICE, OR ANY DAMAGE TO OR CORRUPTION OR LOSS OF ANY OF THE FOREGOING, (IV) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR CONTENT, OR (V) ANY ACCESS TO OR USE OF, OR ANY INABILITY TO ACCESS OR USE ANY CONTENT OR MATERIALS.
IN THE EVENT THAT NOTWITHSTANDING THE PROVISIONS OF THE FOREGOING PARAGRAPHS OF THIS SECTION, WE (OR ANY OF OUR AGENTS, REPRESENTATIVES, CONTRACTORS, AFFILIATES OR THIRD PARTY LICENSORS OR SUPPLIERS) ARE FOUND LIABLE TO ANY CUSTOMER, USER OR GUEST OR OTHERWISE FOR DAMAGES FROM ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, THE AGGREGATE AMOUNT OF ALL SUCH LIABILITY SHALL BE LIMITED TO AND SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID TO US BY CUSTOMER OR YOU (AS APPLICABLE) FOR AND WITH RESPECT TO THE PARTICULAR GOODS OR SERVICES THAT GIVE RISE TO SUCH CLAIM IN WHICH THE CAUSE OF ACTION ACCRUED.
THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
You agree and must at all times indemnify, defend and hold Magitex and its third party suppliers or licensors, each of our and their business partners and each of our and their respective employees, officers, directors, managers and representatives (each an “Indemnitee” and collectively the “Indemnitees”), harmless from and against any and all losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including attorneys’ fees and court costs) suffered or incurred by any of the Indemnitees as a result of any third party claim, action, suit, or proceeding arising out of or incident to (i) any Customer or other person’s use of or access to the Site in a manner not authorized by these Terms, or in violation of any applicable laws, (ii) Content including any claim involving infringement or misappropriation of third party rights or the use, development, design, manufacture, production, advertising, promotion or marketing of Customer Content, (iii) any breach by Customer or any other person of any term or condition of these Terms, including without limitation, any representation and warranty hereunder, or (iv) any act, omission or misconduct of Customer or any other person using or accessing the Site.
We will promptly notify you of any claim which we become aware of and which we believe to be subject to indemnification under this Section; provided that our failure to promptly notify you shall not affect your indemnification obligations hereunder except to the extent that our failure to promptly notify you materially prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim(s) with counsel of your own choosing (subject to a conflicts assessment), and to settle such claim as you deem appropriate, provided that you (nor any Person acting on your behalf) may enter into any settlement without Magitex’s prior written consent (which may be conditioned or withheld in our sole and absolute discretion) and provided that we may, at any time, elect to take over control of the defense and settlement of any claim.
XII. Dispute Resolution
If you reside in the United States, you and Magitex agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Site (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other Intellectual Property Rights. You acknowledge and agree that you and Magitex are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative proceeding. Further, unless both you and Magitex otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
B. Rules and Governing Law
This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. The AAA Rules are available at www.adr.org/arb_med. The Federal Arbitration Act will govern the interpretation and enforcement of this section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Florida and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
D. Location and Procedure
Unless you and Magitex otherwise agree, the arbitration will be conducted in Miami-Dade County, Florida, United States. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Magitex submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions of the “Modification” section above, if Magitex changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Magitex’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Magitex in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
XIII. General Provisions
A. General Rules of Construction
For purposes of these Terms: (i) whenever the context requires, the singular number shall include the plural, and vice versa; (ii) the masculine gender shall include the feminine and neuter genders; (iii) the feminine gender shall include the masculine and neuter genders; and (iv) the neuter gender shall include the masculine and feminine genders. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of these Terms. As used in these Terms: (i) the words “hereof”, “hereunder”, “herein” and words of similar import refer to these Terms as a whole and not to any particular provision of these Terms; (ii) the words “include” and “including”, and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation”; (iii) except as otherwise expressly indicated, all references in these Terms to “Sections”, “Subsections”, “Paragraphs”, “Schedules”, “Exhibits” are intended to refer to sections, subsections or paragraphs of these Terms; and (iv) the word “or” means “and/or”.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Magitex (i) via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
C. Controlling Law and Jurisdiction
These Terms and your use of the Services will be interpreted in accordance with the laws of the State of Florida and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in Miami-Dade County, Florida or a United States District Court, Southern District of Florida located in Miami-Dade County, Florida for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision.
If any provision of these Terms, or the application of such provision, is held invalid by a court of competent jurisdiction, the remainder of these Terms, and the application of such provision to persons, entities, or circumstances other than those with respect to which it is held invalid, shall not be affected.
E. Waiver and Enforceability
The failure of Magitex to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Magitex. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
F. Third Party Beneficiary
These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. Notwithstanding the foregoing, the parties agree that the payment card networks are third party beneficiaries of these Terms for purposes of enforcing provisions related to payments, but that their consent or agreement is not necessary for any changes or modifications to these Terms. G. Term and Termination These Terms are effective upon your creation of an Account, as amended by any modifications made by Magitex as outlined at the start of these Terms. You may discontinue your use of Customer Features or your Account at any time, for any reason. We may suspend or deactivate your Account, or revoke your permission to access the Site or any or all Customer Features, at any time, for any reason, with or without notice to you. We reserve the right to refuse access to the Site or any Customer Feature to any Customer for any reason not prohibited by applicable Law. Either party may terminate the Terms for any reason upon written notice to the other party.
Sections I (Definitions), II (Acknowledgments and Disclaimers), VI (Orders, Returns, and Other Financial Terms), VIII (Intellectual Property and Customer License Agreement), X (Limitation of Liability), XI (Indemnification), XII (Dispute Resolution), and XIII (General Provisions) shall survive termination of these Terms.
I. Entire Agreement
These Terms constitute the entire and exclusive understanding and agreement between Magitex and you regarding the Site, any Services rendered via the Site, any Magitex Goods, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Magitex and you regarding the Site or any Magitex Goods.
These Terms are neither assignable, transferrable nor delegable by you whether by operation of Law or otherwise. Any attempt by you to assign, transfer, or delegate any of these Terms, will be null and void and of no effect. Magitex may assign, transfer or delegate these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the respective parties, their successors and permitted assigns.
K. How to Contact Us
If you have any questions regarding this Policy or our privacy practices, you can contact us at:
2791 NW 82nd Ave
Miami, FL 33122
Attn: Legal Department
Phone: (305) 470-9282
Or by email at: firstname.lastname@example.org