MAGNIFLEX TERMS & CONDITIONS
BY USING OUR WEBSITE, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS HEREOF WITHOUT ANY MODIFICATIONS, ADDITIONS OR DELETIONS.
These Terms & Conditions (the “Terms” or “Agreement”) are made and entered into by and between Magniflex USA Ltd. Inc, a Florida corporation, (referred to in these Terms as “Company”, “we”, “us” or “our”), which is the operator of the website www.magniflex.com/usa, including any mobile versions or applications related thereto (the “Website”), and you, a user of the Website (referred to in these Terms as “User”, “you” or “your”). This Agreement applies when you access the Website. If you do not agree to the terms and conditions contained herein, you may not access, visit, or use the Website.
BEFORE YOU PROCEED, PLEASE READ THESE TERMS CAREFULLY. THIS AGREEMENT CONTAINS WARRANTY AND LIABILITY DISCLAIMERS. YOU AGREE TO ABIDE BY AND BE BOUND BY THE TERMS DESCRIBED HEREIN AND BY ALL TERMS, POLICIES AND GUIDELINES INCORPORATED BY REFERENCE (IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED TO USE OUR WEBSITE).
We offer a variety of premium Italian mattresses and related accessories such as foundations, adjustable bases, pillows, and mattress protectors (“Products”) for sale to consumers through the Website. We reserve the right to add or remove any Products made available for purchase through the Website as we determine in our sole discretion from time to time.
Purchase of Products.
Subject to these Terms, you may purchase the Products on the Website in exchange for payment of the cost displayed to you at the time of purchase. You agree to provide only true, accurate, current and complete information in connection with any purchase of Products or other services.
Prior to completing a transaction to purchase a Product, the price for such Product will be displayed to you in U.S. dollars (“Fees”). The Fees do not include any applicable taxes, but any taxes will be displayed to you prior to completing an order, and be collected at check-out. You agree that you will review the Fees, and by completing a transaction to purchase a Product, you agree to the amount of such Fees and to have your payment method charged, as set forth in these Terms. You further acknowledge that we may change the amount of Fees for a Product as displayed on the Website from time to time, in our sole discretion, and you agree that you must review the then current amount of Fees as displayed at the time you are completing a transaction. Changes to applicable Fees are effective upon posting the changes on the Website.
When you make a purchase through the Website, you authorize Company and its third-party payment processor, PayPal, to charge the credit card identified by you for the full amount of the applicable fees (including, where applicable, any recurring subscription fees) and all applicable taxes, and you represent and warrant that you are authorized to use such credit card for the purpose of making such purchase. You acknowledge and agree to abide by any applicable terms and conditions of PayPal, which can be accessed here. You further authorize Company and PayPal to store your credit card information. If Company does not receive payment from your credit card provider, Products will not be shipped to you until paid for.
Creating an account with us (“User Account”) is optional. To create a User Account, you must be at least eighteen (18) years of age and will be required to provide us with information about yourself. Users accept personal liability for any and all damages, injuries, or other claims arising from their use of the User Account. Company is not responsible for any obligations or liabilities arising from your creation and use of your User Account.
It is solely your responsibility to ensure that the e-mail address and password for your User Account (“Log-in Credentials”) are kept private and secure at all times. Regardless of whether or not you have given authorization, you are responsible for any actions taken from your User Account.
You may only provide or publish information and other content, including User Content, as defined herein, that you either own or have authorization to provide. You must ensure that any User Content you provide is true, accurate, current, and complete. We may, at any time and in our sole discretion, require you to update your User Account or provide additional information at any time. Failure to comply with such requests may result in the suspension or termination of your Account.
Promotions and Discounts.
From time to time, we may offer qualified Users certain promotions and discounts, such as “gift codes” or “offer codes”, that are redeemable towards a purchase of Products and any related services on our Website. To qualify for such promotional discounts, you may be required to enter a unique code prior to finalizing your order, and only valid codes will be accepted. Offer codes cannot be redeemed for cash or any cash equivalent. The dollar value of any offer code will not be refunded or credited back if any or all of the Products are returned. Expiry dates may apply to each offer code. Certain Products or payment options may not be eligible, and any further rules and restrictions will be disclosed at the time promotional offers are presented to you. By participating in a promotion or discount, you agree to any such applicable rules and restrictions.
We may, from time to time, offer a referral program, in which we will provide you with credit or a discount towards a future purchase of Products from our Website if you refer someone to our Website and they complete a purchase of our Products using a unique referral code or other similar identifier that we provide to you. To be eligible to participate, you must be a legal resident of the U.S. and be at least eighteen (18) years old. Any credit or discount earned through the referral program has no monetary value and cannot be redeemed for cash. Such referral program will be subject to further terms, conditions, and limitations as presented to you at the time you sign up for or are otherwise offered the ability to participate in the referral program.
Shipping and delivery of our Products is subject to our Shipping Policy, which is accessible here.
We may, from time to time, offer in home setup and mattress removal services, which are subject to these Terms as set forth below, as well as our Shipping Policy.
We offer in-home setup for Products purchased through the Website, including unboxing and placing a new mattress and foundation in your desired location, through third-party providers. We will communicate this option to you during the process of completing your purchase and we may require you to complete additional steps on or through our Website and/or email us at a specific email address in order to make the request. Generally, this service requires payment of an additional amount (except for California residents), the price for which will also be communicated to you once you take appropriate action indicating your desire to receive such services. In order to receive in-home mattress setup, it is necessary for someone 18 years of age or older to be on-site at the arranged time and location. We and our third-party providers reserve the right to leave a package in a reasonably secure location (i.e., a front-desk, or package area) if no adult is present.
Mattress and Foundation Removal
We also offer used mattress and foundation removal when you purchase a new mattress from us during the check-out process, which may require you to contact us via email. Generally, this service also requires payment of an additional amount (except for California residents such service is free pursuant to the California Used Mattress Recovery and Recycling Act, as amended by AB-187), the price for which will also be communicated to you once indicate your desire to receive this service. In order to have a used mattress picked up, it is necessary for someone 18 years of age or older to be on-site at the arranged time and location, and the mattress must be in a sanitary condition or we and/or our third-party providers may refuse such removal. Our third-party providers will only remove the pre-arranged number of mattresses as communicated at the time of confirming such services.
You acknowledge and agree that we may use a third-party to provide such in-home services to you, and you consent to such third-party entering your specified delivery location for purposes of setting up your new mattress. In no event shall we be held responsible or liable for any actions of such third-party. You agree to any applicable terms and conditions of such third-party, including but not limited to the terms available here.
Our Return Policy for our Products, which includes a 90-Night Sleep Trial for our mattresses and 30-Night Sleep Trial for our pillows, can be accessed here.
We offer certain warranties for our Products, as set forth in our Warranty Policy, accessible here.
If you provide us with your email address, we may send you newsletters and other electronic communication and containing requests for information, updates, new promotions, discounts, and other communications in writing (“Communications”) regarding the Website and Products. Providing your e-mail address confirms your ability and consent to receive Communications electronically, rather than in paper form. To withdraw your consent to receive electronic Communications, please write us by e-mail at firstname.lastname@example.org with the subject line: “Unsubscribe from Electronic Communications.” In addition, our communications themselves may include the opportunity to opt out. For example, our e-mails may include an unsubscribe link.
You may not access or use the Website for any purpose other than the purpose for which we make it available to you. We may prohibit certain activities in connection with the Website in our discretion. These prohibited activities include, without limitation, the following:
- Criminal or tortious activity, including fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, copyright infringement, patent infringement, trademark infringement, or theft of trade secrets.
- Using any information obtained from the Website in order to contact, advertise to, solicit or sell any products or services to any User without their prior explicit consent.
- Interfering with, disrupting or creating an undue burden on the Website or the networks or services connected to the Website.
- Attempting to impersonate another User or person.
- Using any information obtained from the Website in order to harass, abuse or harm another person.
- Using the Website in a manner inconsistent with any and all applicable laws and regulations.
- Using or otherwise accessing the Website for any reason other than a good faith interest in being matched with Agencies.
- Undertaking any activity which infringes on our or any third-party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity and privacy.
- Posting or submitting any content which is libelous, defamatory, threatening, harassing, invasive of privacy, abusive, tortious, hateful, discriminatory, pornographic or obscene.
- Transmitting any trade secret or other material, non-public information about any person, company or entity without the authorization to do so.
- Restricting or inhibiting any other visitor from using the Website, including without limitation, by means of “hacking” or defacing any portion of the Website.
- Modifying, adapting, sub-licensing, translating, selling, reverse engineering, decompiling, or disassembling any portion of the Website.
- Removing any copyright, trademark or other proprietary rights notices contained in the Website.
- Distributing any virus, worm or other similar or deleterious files, scripts or programming routines through the Website.
- Using any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine” the Website or in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents, authentications and security measures.
- Attempting to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, or algorithms relevant to the Website;
- Modifying, translating, or creating derivative works based on the Website or Products.
Intellectual Property Rights.
The Website and its contents, including any text, graphics, designs, logos, button icons, images, photographs, videos, audio clips, digital downloads, data compilations, and other similar content, including but not limited to the trademark “Magniflex”, are the intellectual property of Company or its licensors and constitute trademarks, patents, copyrights and other intellectual property rights of Company or its licensors under U.S. and foreign laws and international conventions.
You are prohibited from using any such intellectual property displayed or made available through the Website for any purpose, including, but not limited to, use as meta tags on other pages or websites on the World Wide Web, without our written permission, or that of such third party which may own the intellectual property. You agree not to engage in the use, copying or distribution of the Website, including any of its contents, data, or other intellectual property for any commercial purpose.
You do not acquire any ownership rights to the Website, Products, or to any other contents contained on the Website. All rights not expressly granted in these Terms are reserved by Company and its respective licensors, affiliates, and contractors.
We respect the intellectual property of others and expect our Users to do the same. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate access to the Website of any User who repeatedly infringes the rights of copyright holders.
Company will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act ("DMCA"), as set forth below. If you own copyrights in a work and believe that your intellectual property rights in that work have been infringed by an improper posting or distribution of it via the Website, then you must send us a written notice that includes all the following:
- a legend or subject line that says: "DMCA Copyright Infringement Notice";
- a description of the copyrighted work that you claim has been infringed;
- the URL of the site and a description of where the material that you claim is infringing is located on that site;
- your address, telephone number, and e-mail address;
- a statement by you that you have a good faith belief that the alleged infringing material is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and,
- your electronic or physical signature.
We will only receive DMCA notices by e-mail directed to our Designated Agent, DiSchino & Schamy, PLLC by email at email@example.com. A copy of any DMCA notice must also be sent by e-mail and Certified Mail to:
Magniflex USA Ltd., Inc.
3050 Biscayne Blvd, Ste 200
Miami, FL 33137
We may elect to not respond to DMCA notices that do not comply with all the foregoing requirements, and we may elect to remove allegedly infringing material that comes to our attention via notices that do not comply with the above.
If you provide us with any comments, bug reports, feedback, or modifications proposed or suggested by you to the Website (“Feedback”), we shall have the right to use such Feedback at our discretion, including, but not limited to the incorporation of such suggested changes into the Website. You hereby grant us a perpetual, irrevocable, non-exclusive license under all rights necessary to incorporate and use your Feedback into our Website for any purpose.
Disclaimer of Warranties.
EXCEPT AS SET FORTH IN OUR WARRANTY POLICY, THE WEBSITE AND ANY PRODUCTS, CONTENT, OR THIRD-PARTY SITES MADE AVAILABLE IN CONJUNCTION THEREWITH AND/OR ANY MOBILE APPLICATION THEREFOR ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES, AFFILIATES, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, TITLE, SECURITY, OR ACCURACY.
Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights.
Limitation of Liability.
IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED (A) THE TOTAL AMOUNT OF THE ORDER OF PRODUCTS GIVING RISE TO COMPANY’S LIABILITY, OR (B) $100, WHICHEVER IS GREATER.
Applicable law may not allow the limitation of liability set forth above, so this limitation of liability may not apply to you.
You agree to fully indemnify, defend, and hold Company and its subsidiaries, affiliates, partners, officers, directors, employees, agents, and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees), and other expenses that arise directly or indirectly out of or from: (i) your access to, use of, or alleged use of, the Website or the services or goods obtained through your use of the Website, including, but not limited to, Products; (ii) any User Content you upload or submit to us; (iii) your breach or violation of these Terms, any representation, warranty, or covenant referenced in this Terms, or any applicable law or regulation; (iv) any allegation that any materials you submit to us or transmit to the Website infringe or otherwise violate the copyright, patent, trademark, trade secret, or other intellectual property or other rights of any third-party; (v) your activities in connection with the Website or Products or other websites to which the Website is linked; (vi) any negligent act or omission or any willful misconduct by you; and/or (vii) any inaccuracies in the information provided to you through the Website.
Governing Law and Jurisdiction.
You agree that your use of the Website shall be governed by and construed in accordance with the laws of the United States and the State of Florida, without regard to conflict of law rules. The courts of Miami-Dade County, Florida shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
For purposes of this Agreement, you and Company are each referred to as a “Party” and collectively, as the “Parties”. The Parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations, which shall be a requirement prior to either Party initiating a lawsuit or arbitration. All claims arising out of or relating to these Terms (including its formation, performance and breach), the Website, and any purchased Products, shall be finally settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the provisions of its Consumer Arbitration Rules, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to determine the validity of any claim and to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost.
The Parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
Class Action Waiver.
The Parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the Parties shall be deemed to have not agreed to arbitrate disputes.
Exception - Litigation of Small Claims Court Claims.
Notwithstanding the Parties’ decision to resolve all disputes through arbitration, either Party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
Thirty Day Right to Opt-Out.
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth this Agreement by sending written notice of your decision to opt-out to firstname.lastname@example.org. The notice must be sent within thirty (30) days of your first access to the Website, otherwise you shall be bound to arbitrate disputes in accordance with the terms set forth above. If you opt-out of these arbitration provisions, we also will not be bound by them. In addition, if you elect to opt-out of these arbitration provisions, we may terminate your use of the Website.
These Terms may be amended by Company from time to time. You agree that you will review these Terms prior to using the Website and/or purchasing Products, and that your participation and continued use of the Website will constitute acceptance of these Terms, as they may be amended from time to time. A new version of this Agreement will take effect on (i) the date falling thirty (30) calendar days after the date of such posting (or such later date as we indicate in the relevant posting) if any of the changes are to an operative provision of this Agreement which is capable of adversely affecting you, or (ii) immediately upon the date of posting or such later date as we indicate in the relevant posting if the changes are not capable of adversely affecting you, examples of which would include, without limitation: (a) changing the name of the web address for the Website or (b) the refinement of provisions that are already included or referred to in this Agreement. In either case, if you do not wish to be governed by the new version of this Agreement, you must notify us and agree there shall be no further provision of or access to the Website. We shall not have any liability to you in such an event.
Operation of the Website.
You acknowledge that we reserve the right, but have no obligation, to (i) take appropriate legal action against anyone who, in our sole determination, violates these Terms, including, without limitation, reporting to law enforcement authorities, (ii) in our sole discretion and without limitation, refuse, restrict access to or availability of, or disable all or a portion of the Website, and (iii) otherwise manage the Website in a manner designed to protect the rights and property of Company and Users and to facilitate the proper functioning of the Website.
This Agreement is effective unless and until terminated by either you or us. You may terminate by notifying us that you no longer wish to use our Website via email to email@example.com or when you cease using our Website.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of this Agreement, we also may terminate this Agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Website (or any part thereof).
The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
Company shall not be liable for any failure to perform its obligations hereunder where the failure results from any cause beyond its reasonable control, including, without limitation, any mechanical, electronic or communications failure or degradation, act of god, pandemic, or any other similar cause (“Force Majeure Event”). Without limiting the foregoing, we shall have no obligation or liability to provide Products in the event of a Force Majeure Event and will refund you any amounts you paid for such Products that cannot be delivered upon request, subject to our final approval.
If any provision of these Terms is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.
These Terms are not assignable, transferable or sublicensable by you except with our prior written consent. We may transfer, assign or delegate these Terms and our related rights and obligations without obtaining your consent.
These Terms supersede all prior and contemporaneous agreements, representations and warranties and understandings, whether oral or written, with respect to the Website and Products. Modifications to the Terms that are not posted on the Website are not valid unless made in writing and signed by an authorized representative of Company.
You consent to receive notices and other communications regarding these Terms through posting of notices on the Website. You agree that all agreements, notices, disclosures, and other communications that Company provides to you in accordance with the prior sentence satisfy any legal requirement that such communications be in writing.
If you have any questions about these Terms, the Website, or our Products, you may contact us, as follows:
Last Updated: March 1, 2021