- Expert advice
Terms of Sale: Warranty, Shipping, and Returns
Effective Date: September 10, 2022
BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM THIS WEBSITE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH MAGIKFLAME OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
These terms and conditions (these “Terms of Sale“) apply to the purchase and sale of products and services through www.magikflame.com (the “Website“) and through telephone calls to our customer service support line. These Terms of Sale are subject to change by MagikFlame LLC (referred to as “MagikFlame”, “us“, “we“, or “our” as the context may require) without prior written notice at any time, in our sole discretion. Any changes to the Terms of Sale will be in effect as of the “Effective Date” referenced on the Website. You should review these Terms of Sale prior to purchasing any product or services that are available through this Website. Your continued use of this Website after the “Effective Date” will constitute your acceptance of and agreement to such changes.
1. Order Acceptance and Cancellation
You agree that your order is an offer to buy, under these Terms of Sale, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.
2. Prices and Payment Terms
(a) All prices, discounts, and promotions posted on this Website are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be stated in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes (we charge sales tax in the state of Tennessee only) or charges for shipping and handling. All such taxes and charges will be added to your merchandise total, and will be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information, however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences.
(b) We may offer from time to time promotions on the Website that may affect pricing and that are governed by terms and conditions separate from these Terms of Sale. If there is a conflict between the terms for a promotion and these Terms of Sale, the promotion terms will govern.
(c) Terms of payment are within our sole discretion and payment must be received by us before our acceptance of an order. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted on the Website at the time of your order.
3. Shipments: Delivery and Customer’s Inspection
(a) We will arrange for shipment of the products to you. Please check the individual product page for specific delivery options. You will pay all shipping and handling charges specified during the ordering process. Shipping and handling charges are reimbursement for the costs we incur in the processing, handling, packing, shipping, and delivery of your order.
(b) In-stock products are typically shipped in fewer than five (5) business days, using either FedEx Ground Service and/or LTL freight carriers, depending upon the product ordered. Occasionally some products may be backordered. If this happens, we will contact you by email or phone to let you know there is a delay in shipping your order and provide an estimated ship date. Most back-ordered products are manufactured and shipped in 2-6 weeks (depending on availability of components). Inventory is seasonal and some products may not be available during certain months of the year. Order while items are in stock to ensure timely delivery.
(c) Title and risk of loss pass to you upon our transfer of the products to the carrier/delivery. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
(d) Customer Freight Inspection Obligations.
(i) MagikFlame may, but is not obligated to, provide replacement parts for items damaged in transit. In order to process a claim for damaged items, you must inspect the entire shipment upon delivery, before the freight truck departs, and in accordance with these terms and notate any damage.
(ii) Please inspect your entire shipment upon delivery, before the freight truck leaves. It is the customer’s responsibility to make a note of any damage on the freight company’s Bill of Lading before the shipper leaves your residence or business. It is critical that all boxes are visually inspected for signs of obvious damage such as “compression damage” to the box, punctures or holes in the shipping container, crushed “do not double stack cones”, bent in/dented corners, tears or scratches, damage to the packing tape, open boxes, etc., upon delivery. By signing the Bill of Lading (BOL) without notating any damage you are confirming that the freight (to the best of your knowledge) is damage-free, as signing releases the freight company of liability. All freight should be inspected within 48 hours after the delivery is made. We are not responsible for damage after this window.
(iii) Damaged Parts Return Policy and Procedure
If any damage is found upon inspection, you MUST complete all three steps below:
- Make a notation/description of the damage on the Bill of Lading before signing it. Any damage that is not notated on the Bill of Landing will not be covered under our replacement policy. Please keep a copy of the Bill of Lading for your records for claims processing.
- Immediately or as soon as reasonably possible upon becoming aware of the damage, take photos that clearly show the damage, AND
- Contact MagikFlame to report the damage and send photos of the damage immediately, and in any case no later than forty-eight (48) hours after receiving shipment, at: [email protected]
(iv) MagikFlame may, upon review of a damage claim by our technical team and in MagikFlame’s sole discretion, ship replacement parts at no charge to you.
(v) Please retain all packing materials until your fireplace is installed and operating. Fireplaces can not be returned and warranty work can not be performed without the original packaging. We suggest you keep the original packing materials for at least 12 months after purchase.
(vi) NOTE: Damaged packing materials are not considered a valid reason for the return of otherwise non-defective merchandise. Replacement parts are sent free of charge for all notated damage, subject to this Terms of Sale. Returns of non-defective units that are not notated on the Bill of Lading as damaged upon delivery are considered to be non-defective merchandise returns, and subject to our Non-Defective Returns policy, found within Section 4(a) of this Terms of Sale. Shipping charges and a 20% restocking fee (“Restocking Fee”) are deducted from all refunds for Non-Defective Returns. (See details below).
(e) Refused Shipments or Non-Response to Delivery Attempt
(i) If you refuse to accept the delivery of your MagikFlame order, or fail to respond to delivery attempts by the freight carrier, you will be responsible for paying all shipping and handling costs incurred by MagikFlame – plus a 20% Restocking Fee. These costs may include (but are not limited to):
- Employee time for packaging and order administration
- Packing materials
- Storage and warehousing costs associated with handling freight
- Outbound freight costs from MagikFlame to your delivery location
- Inbound freight costs to MagikFlame from your delivery location.
(ii) This means you are potentially obligated to pay shipping costs in
both directions. To avoid additional expense and a restocking fee, simply accept your MagikFlame order delivery.
(iii) Units that are returned damaged by the buyer will not be refunded. Units must be in “like new” re-saleable condition to be accepted or the full refund policy is void. Such damage includes:
- Scratches to the sheet metal chassis.
- Damage to the TV, computer, touchscreen, glass, log set, or other physical damage that makes the unit unsaleable as new.
(iv) Never attempt to re-paint the unit as it needs to be professionally powder coated.
(v) Please take great care while installing your product as to avoid any damage that would deem your unit non-refundable. i.e.: Don’t scratch or otherwise damage/break your unit.
(g) MagikFlame does not direct-ship internationally. However, we can ship your order to a freight forwarder with a distribution hub located in the continental USA. You must make all arrangements with the freight forwarder to ship your MagikFlame order to the destination country. We will provide a commercial invoice to the freight forwarder so they can assess the required import and duty fees. Magik Flame, LLC is not responsible for import fees, tariffs or international shipping costs. If you have questions about exporting our products, please contact a reliable freight forwarder for the information you need before placing an order.
4. Returns and Refunds
Promotions and Trial Periods. Unless otherwise stated, any MagikFlame product purchased or obtained through an applicable promotion or trial period (e.g., 30-Night Home Trial Period) shall be subject to all terms and conditions stated within this Terms of Sale, with particular attention to: Customer Freight Inspection Obligations (Section 3 above) and Non-Defective Product Returns Policy and Procedure (Section 4). Please review these sections and this Terms of Sale carefully to understand your obligations and our expectations when interacting with our products and services.
(a) Non-Defective Product Returns Policy and Procedure
(i) If you are not completely satisfied with your purchase from MagikFlame for any reason, we will accept a return of the products for a refund of your purchase price, less the shipping and handling costs, provided such return is made within 30 days of delivery with valid proof of purchase and provided such products are returned in their original condition (a “Non-Defective Return”) and in their original packaging. Returns will not be accepted without all original packaging. Items must be placed back in the packaging using the same materials and methods as we used when we shipped the product to protect against possible damage in transit back to our facility. We are not responsible for items that break due to improper packing or damage by you or the freight company
(ii) To initiate a Non-Defective Return, you must call 800-320-6814 or email our Returns Department at [email protected] to obtain a “return authorization” before shipping your product back. No returns of any type will be accepted without prior written authorization. If you choose to email us, write “REFUND REQUEST” (without quotation marks) in the email subject line so that we can identify and process the request. Please include your order number and a copy of your invoice with the returned merchandise to ensure that you receive credit.
(iii) You are responsible for all shipping and handling charges on returned items. You bear the risk of loss during shipment. We therefore strongly recommend that you fully insure your return shipment against loss or damage and that you use a carrier that can provide you with proof of delivery for your protection. We recommend shipping with FedEx (not UPS) for Inserts and a reliable freight company (LTL) for mantle purchases. You can use the web sites freightquote.com or uship.com to find a carrier in your area. Note that when shipping back mantel packages the boxes must be secured to the pallet using shrink wrap, and the original pallet must be used (i.e. Our pallets are custom built for the size of the shipping boxes). We are not responsible for damages if you or the freight company do not use or use the wrong pallet or do not shrink wrap the contents.
(iv) All orders must be returned in the original packaging (including all accessories: hardware, glass, remotes, brackets, etc.) and in “like new” re-saleable condition, with no exceptions. Please keep the boxes and foam packing materials for reuse. Products returned in anything other than the original packaging will be refused and shipped back to you at your expense. MagikFlame is not responsible for any damage that may occur while products are in transit back to us. Damaged products will not be refunded.
- Returning a Fireplace Mantel Package: We recommend FedEx Freight LTL Economy for the best service.
- Returning a Fireplace Insert: We recommend FedEx Ground (NOT UPS) for the best service [with insurance].
v) Any product returned to us damaged (either by you or the freight company) is not eligible for a refund and will not be issued. In the case of damage by the freight carrier, it is your responsibility to file a freight claim with the carrier. We will provide photographic evidence of the damage to the shipping box and of the product itself to you, so that you can file a freight claim directly (as the shipper). You will need to provide your original commercial invoice from us to the carrier and notify them that the product is a “total loss”. You will need to collect your refund from the freight carrier directly, as we only offer refunds on units that are sent back to us in the same “like new” condition as we sent it to you. At your discretion we can either 1) ship the damaged item back to you at your expense 2) dispose of the item. Please notify us which option you would like by writing to [email protected]
- Important Information about the HoloFlame Insert:
MagikFlame’s HoloFlame 28″ insert uses holographic glass with a special optical coating that makes it highly reflective. Please be aware that bright ceiling lights and light from windows may be visibly reflected on the glass. The HoloFlame insert looks best in dim lighting, and away from bright light sources. Like any electric fireplace, MagikFlame is best viewed from straight on; it does not look as realistic when viewed from a diagonal or side angle. Enjoy your MagikFlame from a seated position, 6-8 feet away from the firebox, and facing directly towards the insert to reduce the reflections from other light sources. We recommend elevating the Insert up, off of the floor by several (5-9″) inches for best performance. Do not place the Insert directly on the ground as this affects the desired viewing angle. Standing above the Insert looking down on it, and/or viewing from extreme side angles will not result in optimal appearance. It’s best viewed from a couch or seated position several feet away from the viewable area. Please consider the reflective nature of the glass and your interior lighting scheme before ordering, and call us if you have any questions.
Due to the nature of the optical holographic technology, some customers have reported the flames appear to be coming from “behind” the logs and not “on them” as pictured on the site. This can not be reproduced in photographs/video and does not constitute a defective unit. The glass in which the video is projected is physically in front of the log set, and therefore the flames can not be behind the logs. Please note that there is a mechanical light effect that does emit from the back of the log set to the interior of the fireplace insert, but this is not part of our holographic technology, and is there to create ambiance only for realism.
Furthermore there is some text that will appear both backwards and upside down when initially turning the fireplace on and off and sometimes while selecting different “input” modes or “scaling” options. Normally this text is not meant to be read, as all controls from the touchscreen/app are NOT written backwards. This is due to the reflective nature of glass and our technology, and any text written backwards/upside down is not considered defective, as this is an optical effect (IE: The reason why the word “Ambulance” is written backwards on the vehicle so it can be read in your rear-view mirror when driving; it’s the same thing and is the nature of bouncing and reflected light.
Any returns requested due to a customer’s dissatisfaction or change of mind regarding the cosmetic/reflective nature of an otherwise fully functioning HoloFlame Insert glass are considered Non-Defective Product Returns and may only be returned in accordance with Section 4(a) of this Terms of Sale.
A MagikFlame fireplace has 30 unique flame settings that offer a variety of styles and effects. Some flames may not appear to be coming from in front of the logs; others appear to be coming from behind the logs. For the most realistic experience, choose flame effects that come from in front of and on top of the logs (in accordance with the “Flame optimization” steps in the instruction manual). We suggest setting the fireplace as follows:
- Make sure the logs turn on and off completely when you press the orange circle on the power menu from the touchscreen or app. If the logs do not turn on and off completely when you press the orange circle, call tech support for assistance in syncing the logs, or refer to the trouble shooting section of your printed instruction manual.
- Find the campfire flame style that has flames coming only from the center of the logs, and has smoke blowing from left to right (not straight up; there is only one flame like this.)
- On the menu, choose the next flame to the right of the campfire flame. This is the flame shown on the website/cover of instruction manual and in most videos and images on the web site.
(vi) How To Pack A Return Freight Shipment
- The mantel, log set, and insert must be re-packed in the original packaging material the same way it was received. The glass must go back in its original box (with foam) and be secured to the back of the insert using the included “cardboard box holder” as provided. Do not put loose parts inside the insert or log box without securing them (IE: remote control), as this could cause damage to parts or accessories in transit back to us.
- Repack the items using clear packing tape only; use of duct tape or other packaging materials will incur a $100 surcharge.
- Use tie straps and/or plastic shrink wrap to secure all boxes to the pallet to prevent shifting in transit, just as it was shipped to you.
- Mantels must contain all panels and assembly hardware to be considered complete. Be sure to re-pack the mantel as it was shipped to you with foam in between each layer (to prevent scratching in transit) and be sure to include all hardware accessories and the mantel manual inside the mantel box and not inside the insert box. If parts are missing or damaged upon return, we may refuse to issue a refund in accordance with Section 4(a) of this Terms of Sale.
(vii) Unless otherwise specified, all returns are subject to a 20% Restocking Fee. This is calculated based on the total order value, including shipping. The fee covers the costs we incur by testing all returned non-defective units and replacing packaging materials. After the products (including all accessories) are returned undamaged, they are inspected and tested, and a refund will be issued via the original method of payment (minus shipping and restocking fees).
If you ordered with a “free shipping” promotion, please note that shipping is in fact not free, it was simply paid for out of your order total. Shipping is a service and is not refundable i.e., the freight company delivered the product to you and so the service was performed and is not refundable, and will be deducted from your refund amount.
(viii) Returned items will be tested for functionality, returned parts and damage before a credit is issued. Refunds will not be issued if original parts are missing as this would constitute a “non-complete” return. Be sure to include all original hardware when returning.
(iv) Refunds are processed within approximately five (5) business days of our receipt of your merchandise. Your refund will be credited back to the same payment method used to make the original purchase on the Website. We do not offer refunds via check or bank transfers; only to your original payment method.
(b) Defective Part Return Policy and Procedure
(i) If a MagikFlame part is defective, we prefer to replace the defective part so you can enjoy your new fireplace without shipping the product back. Once tech support has identified the problem, we will ship replacement part(s) free of charge. We will also send you a FedEx return label to return the defective part(s) at our expense. We provide phone tech support, free of charge, to guide you in swapping out any potential defective part(s). Our fireplaces do not require a professional to work on.
(ii) If you do not want defective parts replaced and would rather return the MagikFlame product, we will, at our discretion, waive the 20% Restocking Fee. You are still responsible for the cost of shipping the order to you (even if it was purchased with a free shipping promotion) and for the cost of return shipping via our recommended shipping methods (it is recommend that you insure your shipments): FedEx Ground for Inserts or LTL freight for mantels.
5. Cancellation Policy
At MagikFlame we strive to ship all orders as soon as possible. Once your order is placed our warehouse staff immediately begins to prepare it for shipment. This includes pulling and sorting all components, packaging and boxing your order for shipment, scheduling a freight carrier and moving it to the loading dock for pickup. Because we invest time and materials preparing your order for shipping, all cancelled orders will incur a $100 cancellation fee. All cancelled orders will be refunded in full, minus the $100 cancellation fee. If an order has been booked, picked up, or transported by our freight company before the order is cancelled, you may be charged for shipping to you and return shipping, these additional costs may also be deducted from your refund amount. Please be certain you wish to receive your MagikFlame before placing your order.
MagikFlame reserves the right to cancel any order at any time for any reason without prior notice to you.
(a) Please take great care and follow the instructions carefully when assembling the mantel and installing the glass. Be sure to watch the glass installation video on YouTube and reference the printed instruction manual for proper glass installation and orientation (e.g., it rests at a 45-degree angle over the logs) and is not a protective barrier (vertically mounted) at the front. Installing the glass improperly can result in damage to the unit and will affect the operating quality.
(b) MagikFlame is not responsible for any damage that may occur when you are assembling your mantel or installing your glass. Please take care with installation, and follow the instructions precisely. If you have a question or a problem, please call us directly at 800-320-6814; replacement parts are expensive and we are available to advise you.
(c) Improper assembly of the mantel may result in damage to the mantel; replacement mantel pieces are not available. You are required to purchase a new mantel if the mantel is damaged during installation, subject to applicable replacement product and shipping charges.
(d) We do not have paint touch-up kits. Be careful with assembly to avoid chipping or fracturing the wood with tools or while installing the mantel hardware (e.g., bolts/camshafts/etc.).
(e) If the glass is broken due to improper installation, you may purchase replacement glass from MagikFlame. MagikFlame does not provide replacement glass free of charge. This part is custom made to order, so please take great care to not break your glass as it is a costly replacement item.
(f) Custom Enclosures
(i) In the likelihood that you have custom built an enclosure for a product, that does not house a MagikFlame product properly, MagikFlame is not responsible for your or any third party’s use of a MagikFlame product in connection with the custom-built enclosure, including any associated labor time and material costs. Furthermore, if MagikFlame products have been enclosed in a custom surround or built-in to a structure and need to be removed for repair or product service, MagikFlame is not responsible for labor or materials for such incidence.
(ii) YOU SHOULD ONLY USE OUR SERVICES AND PRODUCTS AS INTENDED. CUSTOM ENCLOSURES, PRODUCT MODIFICATIONS, OR IMPROPER USE OF THE SERVICES, INCLUDING IMPROPER USE OF ANY PRODUCTS PROVIDED BY OR PURCHASED FROM MAGIKFLAME, COULD RESULT IN PROPERTY DAMAGE, PERSONAL INJURY OR DEATH. YOU VOLUNTARILY ASSUME ALL RISK OF DEATH, PERSONAL INJURY OR PROPERTY DAMAGE CAUSED OR SUSTAINED WHILE USING MAGIKFLAME SERVICES AND PRODUCTS IN ANY WAY THAT IS NOT INTENDED OR SPECIFIED BY MAGIKFLAME, INCLUDING IN RELATION TO YOUR USE OF ANY CUSTOM-BUILT ENCLOSURES OR MODIFICATIONS TO THE PRODUCTS. YOU AGREE TO FOLLOW THE DOCUMENTED INSTRUCTIONS PROVIDED BY MAGIKFLAME WHEN USING ANY MAGIKFLAME PRODUCT OR SERVICE. DO NOT PLUG THE MAGIKFLAME INTO A POWERSTRIP OR SHARE THE ELECTRICAL OUTLET WITH ANY HIGH AMP DRAW APPLIANCES AS THIS COULD CAUSE RISK OF ELECTRICAL SHOCK OR FIRE.
7. Limited Warranty
(a) All MagikFlame electric fireplaces are guaranteed to be free of defects at the time of shipping. Should your unit fail within one (1) year from the date of purchase, the unit can be returned for repair or replaced at our discretion. If it is determined your unit can be repaired by simply swapping parts, MagikFlame will ship you (free of charge) hardware/parts and instructions on how to remedy your issue and/or provide phone tech support. If the component that has failed is no longer available you will be paid the wholesale value of that part if it fails within the warranty period and a replacement is not available. If the item needs to be returned do so in the original box with foam. Any returns for warranty issues not in the original box will be void. Please keep all original packaging material as items can not be returned for service without the original boxes.
(b) THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. THIS LIMITED WARRANTY CAN ALSO BE FOUND AT HTTPS://MAGIKFLAME.COM/POLICIES AND IN THE DOCUMENTATION WE PROVIDE WITH THE PRODUCTS.
(c) This limited warranty extends only to the original purchaser of products and services from the Website. It does not extend to any subsequent or other owner or transferee of the product or any transferee or other beneficiary of the service.
(d) This limited warranty covers during the Warranty Period (as defined below) defects in materials and workmanship in products and services purchased from the Website.
(e) This limited warranty does NOT cover any damages due to: transportation; storage; improper use; failure to follow the product instructions or to perform any preventive maintenance; modifications; combination or use with any products, including use with any custom-built enclosure, materials, processes, systems or other matter not provided or authorized in writing by MagikFlame; unauthorized repair; normal wear and tear; or external causes such as accidents, moisture or flooding, nature, abuse, or other actions or events beyond our reasonable control.
(f) This limited warranty starts on the date of your purchase and lasts for one (1) year the “Warranty Period“. The Warranty Period is not extended if we repair or replace a warranted product or re-perform a warranted service. We may change the availability of this limited warranty at our discretion, but any changes will not be retroactive.
(g) To obtain warranty service, you must contact our Customer Service Department through one of the methods below during the Warranty Period. We care about our customers and strive to provide the best possible customer experience with fairness to all concerned. If you have any questions or concerns, please contact us.
(i) Call: 800-320-6814. Telephone support is available 9 AM – 10 PM Central Standard Time seven days per week
(ii) Chat: Use the chat widget on the MagikFlame website.
(iii) Email: [email protected]
8. Limitation of Liability
THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT OR SERVICE THAT YOU HAVE PURCHASED THROUGH THE WEBSITE, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PRODUCTION, WORK, DATA, USE, BUSINESS, GOODWILL, REPUTATION, REVENUE OR PROFIT, ANY DIMINUTION IN VALUE, COSTS OF REPLACEMENT GOODS OR SERVICES, OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU
9. Goods Not for Resale or Export
You represent and warrant that you are buying products or services from the Website for your own personal or household use only, and not for resale or export. You further represent and warrant that all purchases are intended for final delivery to locations within the US (unless otherwise stated at the time of purchase).
11. Force Majeure
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms of Sale, for any failure or delay in our performance under these Terms of Sale when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
12. Governing Law and Jurisdiction
This Website is operated from the US. All matters arising out of or relating to these Terms of Sale are governed by and construed in accordance with the internal laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule (whether of the State of Tennessee or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Tennessee.
13. Non-Chargeback Dispute Resolution and Binding Arbitration
WITH THE EXCECPTION OF ANY CLAIMS OR CONTROVERSIES ARISING FROM ANY CHARGEBACKS FOR SERVICES INITIATED BY YOU WITH YOUR CREDIT CARD COMPANY (see Section 14 for our Chargeback Policy):
(a) YOU AND MAGIKFLAME ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
(b) The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Consumer Arbitration Rules (the “AAA Rules“) then in effect, except as modified by this 13. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
(c) You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR MAGIKFLAME WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
14. CHARGEBACK POLICY:
If you place a chargeback with your credit card (on purpose or by mistake) for any deposit you made in your Account with MagikFlame, we reserve the right to charge you a reasonable “Chargeback Processing Fee” to cover all further investigation expenses. In respect of the aforementioned, you hereby authorise us to charge the Chargeback Processing Fee to your credit card. We do not tolerate credit card fraud, and all fraud, without exception, will be prosecuted through criminal proceedings in your local jurisdiction to the fullest extent of the law. In addition, we will pursue civil legal action in your local jurisdiction seeking any loss of income related to the fraud, including business, legal fees, research costs, employee down time and loss of revenues.
You will not assign any of your rights or delegate any of your obligations under these Terms of Sale without our prior written consent. Any purported assignment or delegation in violation of this 15 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms of Sale.
16. No Waivers:
The failure by us to enforce any right or provision of these Terms of Sale will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of MagikFlame.
17. No Third-Party Beneficiaries:
These Terms of Sale do not and are not intended to confer any rights or remedies upon any person other than you.
(a) To You We may provide any notice to you under these Terms of Sale by: (i) sending a message to the email address you provide or (ii) by posting to the Website. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
(b) To Us To give us notice under these Terms of Sale, you must contact us as follows: (i) by personal delivery, overnight courier, or registered or certified mail to 1225 Heil Quaker Blvd., La Vergne, TN 37086, or (ii) by email at [email protected]. We may update the facsimile number or address for notices to us by posting a notice on the Website. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
If any provision of these Terms of Sale is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms of Sale and will not affect the validity or enforceability of the remaining provisions of these Terms of Sale.
20. Entire Agreement