Terms of service

By ordering any products or services from Seller you are agreeing unconditionally to all of the following Terms and Conditions. These terms may be changed at any time by Seller without notice.

Definitions:

“Seller” refers to TheMagic5, Inc. (a North Carolina corporation), TheMagic5, the TheMagic5 website and mobile application, and any individuals associated therewith;

“Buyer” refers to the individual, company, firm, or other legal entity purchasing the Products from the Seller for any and all reasons;

“Product” refers to any and all of the Seller’s proprietary and customized output which is the subject of the Contract;

“Contract” refers to an agreement between the Seller and Buyer in exchange for the sale of a Product, namely custom manufactured swimming goggles.

Age:

Products may not be purchased by anyone less than 13 years of age. Buyer agrees that the Products are not appropriate for individuals of less than 13 years of age.

Personal Information:

Buyer affirms that the billing information given to Seller is truthful and accurate. Buyer confirms all personal information given is his or her own and not that of a third party.

Right to Refuse Sale:

Seller reserves the right to refuse sale or service to anyone for any reason.

Refunds:

All sales are subject to Seller’s Return Policy.

Severability:

The validity of these terms and conditions are not affected by the declaration of one or more of the terms and conditions as legally invalid, illegal, or unenforceable. Each term and condition stands on its own merits and shall not be deemed less valid by any seen or unforeseen change in the others, regardless of circumstance.

Choice of Law and Venue:

These Terms and Conditions, as well as any sale to Buyer, are deemed to have been agreed to in and occurred in the State of North Carolina. Any disputes or interpretation construction, and the remedies for enforcement or breach, are to be applied pursuant to and in accordance with the laws of the State of North Carolina. Buyer and Seller expressly agree that all actions or proceedings arising in connection with the sale of any Services or these Terms and Conditions shall be tried and litigated exclusively in the State or Federal Courts located in the State of North Carolina. The Buyer waives the right to contest exclusive venue by any motion to transfer, motion for forum non-conveniens or related motions.

Disclaimer of Liability:

The purpose of this Terms and Conditions agreement is to alleviate any and all liability of the Seller for occurrences where harm or injury resulted from the purchase, use, or misuse of the Products or any information associated therewith. By purchasing the Products, or otherwise using the TheMagic5 website, you are hereby affirming the following representations:

I am fully responsible for being aware of the laws and regulations in my state, county, or municipality in regards to the Products I'm purchasing, and take full responsibility for any outcomes or damages resulting from purchasing such Products and utilizing the information included therein. I acknowledge that TheMagic5 is not responsible for knowing the details of my local laws. By providing a billing address, I am informing the Seller that I believe that the Products purchased are in compliance with all laws and regulations of my locality.

I am over 18 and an adult under the laws of my State and Country.

I am in good health and am capable of making my own decisions and representations.

IMPORTING

The goods will be imported on behalf of the consignee/ebuyer. The consignee authorizes THEMAGIC5 to import the goods on his behalf. Further, the consignee/buyer agrees that THEMAGIC5 may delegate the obligation to import the goods on his behalf to a subcontractor. The consignee will pay the taxes & duties in addition with the purchase price of the goods.

LIMITATION AND DISCLAIMER OF WARRANTIES. I clearly understand that all Products & information obtained through Seller are provided ‘AS IS’ and without warranty, express or implied. All implied warranties of merchantability, fitness for a particular purpose, are hereby disclaimed.

In no event will Seller be liable to me or anyone else for any damages or injury caused by use, misuse, or improper use of the Products. Waiver of liability includes all damages whether incidental, consequential, special, or similar.

I agree to indemnify and hold harmless Seller and all other parties involved, including but not limited to their owners, officers, affiliates, associates and employees, for any and all damages incurred as result of the purchase, use, or misuse of the Products. The Seller and all related aforementioned parties shall not be liable under any theory whatsoever.

There are no circumstances in which Seller shall be liable for any damages beyond its Limited Warranty whether direct or indirect, special, incidental, consequential or punitive.

I HAVE CLEARLY READ AND UNDERSTAND THESE TERMS AND CONDITIONS, AS WELL AS ANY AND ALL CAUTIONS & WARNINGS, INCLUDING BUT NOT LIMITED TO THE WARNINGS PRINTED ON THE WEBSITE. I hereby agree to carefully abide by these cautions & warnings. I also will abide by all warnings stated on the website, regarding use of the information provided as a part of the contracted for Products.

GOVERNING LAW

Any claim relating to the TheMagic5 website or mobile application shall be governed by the laws of the State of North Carolina without regard to its conflict of law provisions.

RETURN POLICY

TheMagic5 is proud to offer custom swimming goggles to the public, and we stand by the quality and value of our product. However, we understand that sometimes returns may be necessary. We do accept returns for up to 14 days from the delivery date. The item must be returned in its original packaging where possible, and with all included parts to receive proper credit.

Because our products are custom-made and require an attention to detail, to qualify for returns the customer must have shown a reasonable willingness to provide us with feedback regarding their goggles issues, providing TheMagic5 a reasonable chance to fix the issues experienced by the customer. Our feedback procedure has the single purpose of providing us with sufficient data to rebuild the goggles for the customer and send a working second pair.

The feedback process is as follows:

1. We need to ensure that the customer is wearing the goggles properly TheMagic5 will forward instructions on how to wear the goggles correctly.

2. If the previous item does not resolve the issues at hand, we will further investigate the problem the customer may be experiencing, including:
a. Asking the customer to provide product feedback based on standardized questions emailed to the customer from our customer service team
b. Asking the customer to provide three pictures of wearing the goggles, one picture showing the goggles from the front, one picture showing the goggles from the side and one picture showing the goggles from the top.

3. Based on the input extracted from the steps above, TheMagic5 will produce and ship a new version of the product to the customer

4. If this pair does not fix the issues at hand, the customer will qualify for a refund. We will refund 100% of the purchase price of the item upon receipt of the returned item.
If you are returning an item, please secure the item in its original packaging and return it via UPS or other carrier to:

TheMagic5, Inc.
160 Van Brunt St, Suite 2

Brooklyn, NY, 11231

USA

All return shipping charges must be prepaid.

We recommend that you use UPS for your return, or otherwise maintain a tracking number to ensure return delivery.

LIMITED WARRANTY

TheMagic5 offers a limited warranty for a period of ninety (90) days from the original date of purchase. This warranty is only valid for the original owner and does not extend to any third parties. To start a warranty claim, please contact us. Original proof of purchase is required. If instead, you have a return issue, please see our Return Policy for instructions.

Before initiating a warranty claim, customers should ensure that they are following all product care and maintenance instructions, including those enclosed with the product and those on our website.

If your products have material defects or issues with workmanship we will address the issue. Please note, it is within TheMagic5’s sole discretion as to whether a product is materially defective based on a manufacturer or workmanship issue as opposed to another cause that is not covered by our warranty.

Our warranty does not cover lost or stolen items, product misuse, normal wear and tear, which includes scratches or marks on lenses, or damage caused by intentional or negligent abuse, neglect, or accident, or any damage caused by solvents or chemicals.

If you receive a damaged or defective item, contact us as soon as possible at support@themagic5.com. Please have your order information available to give our representatives.

SMS/MMS MOBILE MESSAGE MARKETING PROGRAM
THEMAGIC5 (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy [Insert URL Link to your Privacy Policy] (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.


1. User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.


2. User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that THEMAGIC5 and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.


3. Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery and sale of [Describe company’s goods/service offerings - this should be broad and general to encompass any type of message you may send. Messages outside of this scope may not be allowed under the TCPA]. Messages may include checkout reminders.


4. Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.


5. Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at contact@themagic5.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.


6. MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.


7. Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.
8. Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.


9. Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.


10. Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes: - Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity; - Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age; - Pirated computer programs, viruses, worms, Trojan horses, or other harmful code; - Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; - Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and - Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.


11. Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Charlotte, North Carolina before one arbitrator. The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which THEMAGIC5’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in Section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.

13. Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.

Contacting Us
If there are any questions regarding these terms of service, or if you would like to request access to your data, you may contact us using the information below.

TheMagic5, Inc.
160 Van Brunt St, Suite 2

Brooklyn, NY, 11231, 

USA


email: contact@themagic5.com