MAGIC INK PRE-ORDER TERMS AND CONDITIONS
These Magic Ink Pre-Order Terms and Conditions (the “Pre-Order Terms”) govern the terms and conditions of your (1) use and access to the Site (“Site” means the website located at www.magic.ink or its sub-domains); and (2) pre-order and purchase of certain Products (defined below) offered by HYPRSKN, Inc. (“Magic Ink” or “we” or “us”) from time to time, including such Products offered in connection with the Site. These Pre-Order Terms constitute a binding agreement between us and you with respect to the subject matter hereof.
- Documentation. These Pre-Order Terms comprise the following documents and agreements:
- Pre-Order Terms: These terms and conditions, which are eﬀective as of the date you place your pre-order and make your Pre-Order Payment (the “Pre-Order Date”).
- Pre-Order Confirmation: The Pre-Order Confirmation will be sent to you when you complete your pre-order through the Site or other means provided by us. It will describe the specifications and details of the Magic Ink and/or other products or services (such as a booking for tattoo services) (collectively “Products”) that you have requested to pre-order, including deposit pricing and/or product pricing (excluding taxes, shipping, and oﬃcial or government fees). The Pre-Order Confirmation will also confirm the deposit payment you have made as consideration for Product(s) pre-ordered, which you acknowledge may not include all the fees or costs associated with such Product(s) (the “Pre-Order Payment”).
- Final Purchase Order: The Final Purchase Order will be provided to you as your delivery date nears. It will include ﬁnal pricing based on the Product(s) identified in your Pre-Order Confirmation and will describe and identify any additional fees due for the Products, including shipping and taxes and/or other governmental fees. To complete your purchase for Products, you will be required to complete confirm Final Purchase Order and provide payment in full
- Agreement to Purchase. You agree to pre-order the Product(s) pursuant to your Pre-Order Confirmation and to purchase such Product(s) by completing the transaction pursuant to your Final Purchase Order.
- Pre-Order Price, Taxes and Oﬃcial Fees. The price of your pre-order for Product(s) will be conﬁrmed in your Pre-Order Confirmation and the total price for purchase of such products will be confirmed in your Final Purchase Order. Any pricing provided to you in advance of the Final Purchase Order is only being oﬀered to you as an estimate and is subject to change. Any pre-order price listed in the Pre-Order Confirmation will not include taxes, shipping, and oﬃcial or government fees, which could amount to up to 10% or more of the Product(s) pre-order price. These fees will be calculated closer to the time of delivery and will be indicated on your Final Purchase Order. You are responsible for paying these additional fees.
- Pre-Order Process; Cancellation; Changes. We will issue you the Pre-Order Confirmation and Final Purchase Order based on the Product(s) you select at the outset of the pre-order process.
- Hard Goods. In the case where Products are hard goods, such as a tattoo ink, and except where you have purchased an NFT for such Products (in which case all sales are final), for a period beginning on the date your Pre-Order Confirmation is sent to you until 12-months from the date your Final Purchase Order is sent to you, you may cancel your pre-order, in which case you will receive a full refund of your Pre-Order Payment. During this period, you may make changes to your pre-order, subject to our reasonable discretion to accept or decline such changes. If you make changes to the conﬁguration of the Product(s), you may be subject to potential price increases for any pricing adjustments made since your original Pre-Order Date. Any changes made by you will be reﬂected in a subsequent Pre-Order Confirmation that will form part of these Pre-Order Terms. Such subsequent Pre-Order Confirmation may indicate a price change and/or a new estimated delivery date.
- Tattoo Services. In the case where Products relate to the booking of tattoo services and except where you have purchased an NFT for such Products (in which case all sales are final), for a period beginning on the date your Pre-Order Confirmation is sent to you until thirty (30) days from the date your Final Purchase Order is sent to you, you may cancel your pre-order, in which case you will receive a full refund of your Pre-Order Payment. You also agree and understand that you have thirty (30) days from the date your Final Purchase Order is sent to you to confirm your appointment for tattoo services. If you fail to confirm your appointment or request a refund (if applicable) within this thirty (30) day period, Magic Ink reserves the right to cancel your right to book and is not required to refund any payments (including any Pre-Order Payment) made by your related thereto.
- Delivery. Shipping charges and expected delivery dates may appear in your Pre-Order Confirmation and/or your Final Purchase Order. Based on our service locations and your shipping address, we determine the shipping carrier for your order. Carriers may 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. You are responsible for all shipping fees as indicated in your Final Purchase Order. Please note we will ship only to addresses in the United States.
- Product Availability. You understand that we may not have completed the development of certain Products or begun manufacturing such Products at the time you entered these Pre-Order Terms and, therefore, we do not guarantee when your Product(s) will actually be delivered or that such Product(s) will be available at all. Your actual delivery date is dependent on many factors, including your Product(s) selections and manufacturing availability. To secure your ﬁnal payment and performance under the terms of these Pre-Order Terms, we will retain a security interest in the Product(s) and all proceeds therefrom until your obligations have been fulﬁlled.
- Payments and Authorizations. You agree to pay Magic Ink for all fees and charges associated with your purchase of Products. Your Pre-Order Payment will be due and collected upon receipt of your Purchase Order Confirmation. All remaining fees and charges are due and will be collected in full upon completion of your Final Purchase Order. In connection with Pre-Order Confirmation or your Final Purchase Order, you may be asked to provide customary billing information such as name, billing address and credit card or other payment information either to Magic Ink or its third-party payment processor(s). You agree to pay Magic Ink for any purchases of Products made in connection with your pre-order activity or otherwise 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 Magic Ink 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 (for example, PayPal, Google Pay, Apple Pay, Amazon Pay, and the like). If you are directed to any 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. You understand and agree that Magic Ink 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 Magic Ink Products 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 rule, Magic Ink will collect any fees or charges due upon placement of your order. In our discretion such fees and charges may instead be collected by us at an earlier or later point. Magic Ink 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 Magic Ink’s collection of fees or payments, and Magic Ink expressly disclaims all (and you agree that Magic Ink will have no) liability in this regard. Magic Ink 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.
- Warranty; Product Disclaimers; Returns. Your purchase and use of Products are subject to the applicable terms and conditions of our separate written return policy, products descriptions, warranties, and/or other product disclaimers then in effect at the time of completion of your Final Purchase Order. You will receive any such return policies, written descriptions, warranties, and/or other products disclaimers at or before the time your Final Purchase Order is sent or may otherwise request same by contacting us as set forth in these Pre-Order Terms.
- Limitation of Liability. We are not liable for any incidental, special or consequential damages arising out of these Pre-Order Terms. Your sole and exclusive remedy under these Pre-Order Terms will be limited to reimbursement of your Pre-Order Payment.
- Intellectual Property. The Site is protected by copyright, trademark, and other Laws of the United States and foreign countries. You acknowledge and agree that the Site, including all associated rights in patent, trademark, copyright, or other propriety or intellectual property (collectively “Intellectual Property Rights”), is the exclusive property of Magic Ink and its licensors (hereinafter “Magic Ink 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. All trademarks, trade names, and source identifiers of Magic Ink used on or in connection with the Site are trademarks or registered trademarks of Magic Ink. 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 Pre-Order 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 Magic Ink 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 Platform, or any feature or functionality thereof. No customer or other person may use any of Magic Ink 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 Magic Ink Intellectual Property shall inure exclusively to us or our third-party licensors as applicable.
- Limited License. Magic Ink grants you a limited, non-exclusive, non-transferable license to access and use the Site. 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, except as expressly permitted herein. No licenses or rights are granted to you by implication or otherwise to Magic Ink Intellectual Property, except for the licenses and rights expressly granted herein.
- NFT Offerings. From time to time, Magic Ink may sell non-fungible tokens (“NFTs”) through which Products are made available to you and your subsequent transferees. In some cases, the NFTs may be sold through one or more “Issuers” such as Shopify or blockchain-based applications. Our NFTs may, where stated in the description thereof, include functionality, content, and access or subscriptions to Products, including the ability to redeem an electronic certificate for such Products. Our offering of NFTs is at all times subject to the additional terms and qualifications stated in the description of the NFTs or the smart contract terms thereof. Magic Ink is not a blockchain platform and all use, storage, and transfer of any NFTs is at your own risk and responsibility.
- Ownership. If you purchase an NFT, you own the NFT and proof of such purchase will be recorded on the applicable blockchain. Despite ownership of the NFT, you agree and acknowledge that Magic Ink owns all right, title and interest in and to any computer code, artwork, designs, drawings, photographs, labels, logos, insignia, trademarks, trade dress, copyright, recipes, formulas and other materials that may be associated with such NFT (“Work Product”) and all Intellectual Property Rights in such Work Product. Magic Ink grants you a limited, non-exclusive, non-transferrable, non-sublicensable right and license to display the Work Product for personal, non-commercial use or in connection with the sale or transfer of the applicable NFT. No other rights in Work Product or Magic Ink’s Intellectual Property Rights therein are granted or implied by these Terms. You may not modify, alter, or reverse engineer any Work Product or remove any proprietary notices or labels therefrom.
- Terms of Sale. All sales of NFTs are final and non-refundable/non-returnable. Once you have made a purchase of an NFT, you should promptly take the necessary steps to complete your transaction (e.g., activate or download any content or secure any seed phrase or corresponding private key). You may purchase NFTs using real currency or cryptocurrency, at Magic Ink’s discretion and availability. You may resell or otherwise transfer an NFT subject to applicable law and these Terms. Any sale or transfer must provide for the transfer of all of your rights then outstanding with respect to such NFT. Anyone receiving such NFTs from you agrees to and is bound by these Terms. In no event shall any Magic Ink NFT constitute an investment and you acknowledge and agree that the NFTs have no intrinsic value. You are responsible for any and all liability, including tax liability, that may arise in connection with your purchase, ownership, resale, and transfer of any Magic Ink NFTs.
- Dispute Resolution. If you reside in the United States, you and Magic Ink agree that any dispute, claim or controversy arising out of or relating to these Pre-Order 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 Magic Ink 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 Magic Ink 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. 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 https://www.adr.org/Rules. 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. Unless you and Magic Ink otherwise agree, the arbitration will be conducted in Broward County, Florida, United States. If your claim does not exceed $10,000, then the arbitration will be conducted solely based on documents you and Magic Ink 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.
- Notices. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Pre-Order Terms, will be in writing and given by Magic Ink (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.
- Controlling Law and Jurisdiction. These Pre-Order Terms and your use of the Services will be interpreted in accordance with the laws of the State of New York 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 New York, New York or the United States District Court, Southern District of New York located in New York County, New York 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.
- Severability. If any provision of these Pre-Order Terms, or the application of such provision, is held invalid by a court of competent jurisdiction, the remainder of these Pre-Order 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.
- Waiver and Enforceability. The failure of Magic Ink to enforce any right or provision of these Pre-Order 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 Magic Ink. Except as expressly set forth in these Pre-Order Terms, the exercise by either party of any of its remedies under these Pre-Order Terms will be without prejudice to its other remedies under these Pre-Order Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Pre-Order Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Pre-Order Terms will remain in full force and effect.
- Entire Agreement. These Pre-Order Terms constitute the entire and exclusive understanding and agreement between Magic Ink and you regarding your use of the Site and your pre-order activity and these Pre-Order Terms supersede and replace any and all prior oral or written understandings or agreements between Magic Ink and you regarding such pre-order activity.
- Assignment. These Pre-Order 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 Pre-Order Terms, will be null and void and of no effect. Magic Ink may assign, transfer, or delegate these Pre-Order Terms, at its sole discretion, without restriction. Subject to the foregoing, these Pre-Order Terms will bind and inure to the benefit of the respective parties, their successors and permitted assigns.
- How to Contact Us
Attn: Keith McCurdy, CEO
328 Broome Street
New York, NY 10002
Or by email at: email@example.com