Terms of Use
These Terms of Use are entered into by and between you and Malakai ("Company," "We," or "Us"). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, "Terms of Use"), govern your access to and use of https://malakai.com, including any content, functionality, and services offered on or through https://malakai.com (the "website").
Please read the Terms of Use carefully before you start to use the website. By accessing or using the website, you accept and agree to be bound and abide by these terms of use. If you do not want to agree to these terms of use, you must not access or use the website.
Arbitration Notice: you agree that disputes between you and the company will be resolved by binding, individual arbitration and you waive your right to participate in a class-action lawsuit or class-wide arbitration.
Eligibility
These Terms of Use are a contract between you and the Company. You may use the Website only if you can form a binding contract with us and only in compliance with these Terms of Use and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Website by anyone under thirteen (13) years of age is strictly prohibited and in violation of these Terms of Use. If you are under eighteen (18) years of age, you may use the Website only with the involvement of a parent or legal guardian and their consent and agreement to these Terms of Use. If you are under 18, you represent that you have your parent or guardian’s permission to use the Website and that your parent or guardian agrees to these Terms of Use. If you are a parent or legal guardian of a User under the age of 18, by allowing your child to use the Website, you are subject to the terms of these Terms of Use and responsible for your child’s activity on the Website. Our Website is not available to any Users we previously removed from our Website.
Accessing the Website
The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
Subject to your compliance with these Terms of Use, these Terms of Use permit you to use the Website for your personal, non-commercial use only. We reserve all rights not expressly granted by these Terms of Use in and to our Website and our Intellectual Property (defined below).
You are responsible for both:
Making all arrangements necessary for you to have access to the Website.
Ensuring that all persons who access the Website through your internet connection are aware of these Terms of Use and comply with them.
You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:
Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
You may store files that are automatically cached by your Web browser for display enhancement purposes.
You may print one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
If we provide social media features with certain content, you may take such actions as are enabled by such features.
You must not:
Modify copies of any materials from the Website.
Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.
If you wish to make any use of material on the Website other than that set out in this section, please address your request to: studio@houseofmalakai.com.
We may suspend or terminate your access to our Website at any time for any reason or no reason. For the avoidance of doubt, if you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Use, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.
Trademarks
Unless otherwise noted, the trademarks, service marks, trade dress, trade names, and logos (collectively “Trademarks”) used and displayed on this Service are our registered and unregistered Trademarks and the Trademarks of our licensors and are protected under trademark and other laws. Nothing on the Website should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed on the Website. Our Trademarks and those of our licensors may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits us.
User Accounts
Your account on our Website (your "User Account") gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of User Accounts for different types of users.
You may never use another user’s User Account without permission. When creating your User Account, you must provide accurate and complete profile information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. We encourage you to use "strong" passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols) with your User Account. You must notify us immediately of any breach of security or unauthorized use of your User Account. We will not be liable for any losses caused by any unauthorized use of your User Account.
You may control certain aspects of your User profile and how you interact with our Website by changing the settings in your settings page. By providing us with your email address you consent to our using the email address to send you service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other promotional messages, such as changes to features of our Website and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by contacting us support at studio@houseofmalakai.com or by clicking the unsubscribe link within each promotional message. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers; however, opting out will not prevent you from receiving service-related notices.
You acknowledge that you do not own the User Account. Notwithstanding anything in these Terms of Use to the contrary, you agree that we have the absolute right to manage, regulate, control, modify and/or eliminate any data stored by us or on our behalf on our (including by our third party hosting providers’) servers as we see fit in our sole discretion, in any general or specific case, and that we will have no liability to you based on our exercise of such right. All such data on our is subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, USER ACCOUNT HISTORY AND USER ACCOUNT CONTENT RESIDING ON OUR SERVERS (INCLUDING BY OUR THIRD PARTY HOSTING PROVIDERS’ SERVERS), MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN OUR DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. WE DO NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON OUR SERVERS.
User Data
As part of your use and interaction with the Website, we will collect data, metadata, and information, including personal information, that you provide to us or that is collected by us or via the Website, including without limitation as described in our Privacy Policy ("User Data"). For clarity, however, User Data does not include your User Content described below. You hereby grant to us, and represent and warrant that you have all rights necessary to grant to us, a perpetual, irrevocable, non-exclusive, sublicensable, transferable and royalty-free right and license to collect, use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and to modify and make derivative works of any and all User Data in order to provide and maintain our Website and for such uses as described in our Privacy Policy, and, solely in anonymous or aggregate form, to improve our products and Websites and for our other business purposes (and any and all such derived data is deemed part of our Intellectual Property). We take no responsibility and assume no liability for any of your User Data. You shall be solely responsible and indemnify us for your User Data.
For the purposes of these Terms of Use, "Intellectual Property" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Prohibited Uses
You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Website:
In any way that violates any applicable federal, state, local, or international law or regulation, legal requirement or obligation, contractual obligation, or any right of any person including, but not limited to, intellectual property rights, rights of privacy and/or rights of personality, or which otherwise may be harmful (in our sole discretion) to us, our providers, our suppliers or users.
For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
To transmit, or procure the sending of, any advertising or promotional material, including any "junk mail," "chain letter," "spam," or any other similar solicitation.
To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website, or expose them to liability.
Additionally, you agree not to:
Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Website, including their ability to engage in real time activities through the Website.
Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
Use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent.
Use any device, software, or routine that interferes with the proper working of the Website.
Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
Disassemble, reverse engineer, decode or decompile any part of our Website.
Copy, rent, lease, sell, transfer, assign, sublicense, modify, alter, or create derivative works of any part of our Website or any of our Intellectual Property.
Remove any copyright notices or proprietary legends from our Website.
Use our Website in competition with us, to develop competing products or services, or otherwise to our detriment or commercial disadvantage.
Use our Website for benchmarking or competitive analysis of our Website.
Share passwords or authentication credentials for our Website.
Bypass the measures we may use to prevent or restrict access to our Website or enforce limitations on use of our Website or the content therein, including without limitation features that prevent or restrict use or copying of any content.
Identify us or display any portion of our Website on any site or service that disparages us or our products or services, or infringes any of our intellectual property or other rights.
Identify or refer to us or our Website in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you or a third party and us, other than your permitted use of our Website under these Terms, without our express written consent.
Otherwise attempt to interfere with the proper working of the Website.
Reliance on Information Posted
We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
Changes to the Terms of Use
We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Website thereafter. However, any changes to the dispute resolution provisions set out in this Agreement will not apply to any disputes for which the parties have actual notice before the date the change is posted on the Website.
Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page so you are aware of any changes, as they are binding on you.
Changes to the Website
We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.
Information About You and Your Visits to the Website
All information we collect on this Website is subject to our Privacy Policy. By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
Online Purchases and Other Terms and Conditions
All purchases through our site or other transactions for the sale of goods or services formed through the Website, or resulting from visits made by you, are governed by our Terms of Sale, which are hereby incorporated into these Terms of Use.
Linking to the Website
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.
Links from the Website
If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
Geographic Restrictions
Our Website is controlled and operated from facilities in the United States. We make no representations that our Website is available for use in other locations. Those who access or use our Website from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use our Website if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation on Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES, AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE AMOUNT YOU HAVE PAID TO THE COMPANY FOR THE APPLICABLE PRODUCT OR SERVICE OUT OF WHICH LIABILITY AROSE.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Indemnification
You (and also any third party for whom you operate an account or activity on the Website) agree to defend (at the Company’s request), indemnify and hold the Company and its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns harmless from and against any and all claims, damages, costs and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Website or those conducted on your behalf): (i) your use of and access to our Website, including any data or content transmitted or received by you; (ii) your breach or alleged breach of these Terms of Use, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation, any Intellectual Property rights or privacy rights; (iv) your violation of any applicable laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (v) User Data or any content that is submitted via your User Account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of our Website with your unique username, password or other appropriate security code. You will cooperate as fully required by the Company in the defense of any claim. The Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of the Company.
Governing Law and Jurisdiction
All matters relating to the Website and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT.
Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Arbitration
YOU AND MALAKAI 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.
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 Section 12. (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.
You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR MALAKAI 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.
Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Waiver and Severability
No waiver by the Company of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.
If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect, , except that in the event of unenforceability of the universal class action/jury trial waiver, the entire arbitration agreement shall be unenforceable.
Entire Agreement
The Terms of Use, our Privacy Policy, Terms of Sale and any applicable order form, constitute the sole and entire agreement between you and Malakai regarding the Website and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website.
Your Comments and Concerns
This website is operated by Malakai 96 Tillson Lake Rd., Wallkill, New York 12589.
All feedback, comments, requests for technical support, and other communications (notices of copyright infringement claims) relating to the Website should be directed to: studio@houseofmalakai.com.
TERMS OF SALE
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
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 AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO 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 MALAKAI, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND THE COMPANY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
These terms and conditions (these "Terms") apply to the purchase and sale of products and services through the Malakai website (the "Website"). These Terms are subject to change by Malakai (referred to as the “Company", 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 will be in effect as of the "Last Updated Date" referenced on the Website. You should review these Terms prior to purchasing any product or services that are available through this Website. Your continued use of this Website after the "Last Updated Date" will constitute your acceptance of and agreement to such changes.
These Terms are an integral part of the Website Terms of Use that apply generally to the use of our Website. You should also carefully review our Privacy Policy before placing an order for products or services through this Website.
Eligibility
These Terms are a contract between you and the Company. You may purchase products and services through our Website only if you can form a binding contract with us, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any purchase products and services through our Website by anyone under thirteen (13) years of age is strictly prohibited and in violation of these Terms. If you are under eighteen (18) years of age, you may purchase products and services through the Website only with involvement a parent or legal guardian and their consent and agreement to these Terms. If you are under 18, you represent that you have your parent or guardian’s permission to purchase products and services through the Website and that your parent or guardian is agreeing to these Terms. If you are a parent or legal guardian of a user under the age of 18, by allowing your child to purchase products and services through the Website, you are subject to the Terms, and are responsible for your child’s activity on the Website.
Order Acceptance and Cancellation.
You agree that your order is an offer to buy, under these Terms, 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.
Product Availability
On occasion, you may be able to place a product in your shopping cart and submit your order for processing, but your order is subsequently cancelled due to unavailability of product. You acknowledge that products may sell quickly and there may be a short period of time after an order has been submitted, but where the product is no longer available. You agree that we may cancel your order after you have received an order confirmation without penalty.
On rare occasions, you may receive a shipping confirmation from us, but the product is no longer available in our inventory. You agree that we may rescind our acceptance and cancel your order without penalty if we are unable to ship the product you ordered due to unavailability.
If you're interested in an item that is currently on back order, call us and we can tell you when the item will be back in stock. Sometimes with the volume of orders we receive, an item may go out of stock before we are able to post a notification on the Website. If this happens, we will contact you directly to discuss possible options.
Prices and Payment Terms
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 set out in your order confirmation email. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes 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.
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. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.
Terms of payment are within our sole discretion and, unless otherwise agreed by us in writing, payment must be received by us before our acceptance of an order. We accept Visa, Mastercard, American Express, AmazonPay, PayPal, and ShopPay. We may change the forms of payment that we accept ant any time. You represent and warrant that (i) the payment information, including all credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such payment method for the purchase, (iii) charges incurred by you will be honored by your credit card or payment 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.
Data, including prices, may be inaccurately displayed on our Website due to system or typographical errors. While we make every attempt to avoid these errors, they may occur. We reserve the right to correct any and all errors when they do occur, and we do not honor inaccurate or erroneous prices. If a product's listed price is lower than its actual price, we will, at our discretion, either contact you for instructions before shipping the product or cancel the order and notify you of such cancellation. If the order has been shipped, you agree to either return the product or pay the difference between the actual and charged prices. Our prices are also subject to change without notice.
Shipments; Delivery; Title and Risk of Loss
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.
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.
Returns and Refunds
All sales are final. Please inspect your order upon receipt and contact us at studio@houseofmalakai.com within seven days if the item is defective, damaged or if you received the wrong item, so that we can evaluate the issue and make it right.
Warranty and Disclaimers
ALL PRODUCTS AND SERVICES OFFERED ON THIS SITE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
YOU AFFIRM THAT WE SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER'S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO YOU.
Limitation of Liability
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
TO THE FULLEST EXTENT PROVIDED BY LAW, OUR SOLE AND ENTIRE MAXIMUM LIABILITY IN THE AGGREGATE, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER UNDER AN THEORY OF LIABILITY, SHALL BE LIMITED TO THE ACTUAL AMOUNT PAID BY YOU FOR THE PRODUCTS AND SERVICES YOU HAVE ORDERED THROUGH OUR SITE.
THE LIMITATION OF LIABILITY SET FORTH ABOVE SHALL ONLY APPLY TO THE EXTENT PERMITTED BY LAW.
Goods Not for Resale or Export
All sales are final. Please inspect your order upon receipt and contact us at studio@houseofmalakai.com within seven days if the item is defective, damaged or if you received the wrong item, so that we can evaluate the issue and make it right.
Privacy
We respect your privacy and are committed to protecting it. Our Privacy Policy, governs the processing of all personal data collected from you in connection with your purchase of products or services through the Website.
Force Majeure
We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms 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, pandemic, 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.
Governing Law and Jurisdiction
All matters relating to the Website and these Terms of Use, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT.
Any legal suit, action, or proceeding arising out of, or related to, these Terms of Use or the Website shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
Dispute Resolution and Binding Arbitration
YOU AND MALAKAI 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.
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 section. (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.
You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR MALAKAI 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.
Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF SALE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Assignment
You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of assignment clause is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
No Waivers
The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of Malakai.
No Third-Party Beneficiaries
These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
Notices
To You. We may provide any notice to you under these Terms 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.
To Us. To give us notice under these Terms, you must contact us as follows: (i) by email to studio@houseofmalakai.com; or (ii) by personal delivery, overnight courier, or registered or certified mail to 96 Tillson Lake Rd., Wallkill, New York 12589. Notices provided by personal delivery will be effective immediately. Notices provided by 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.
Severability
If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.
Entire Agreement
These Terms of Sale, the Terms of Use, our Privacy Policy, and any applicable order form, constitute the sole and entire agreement between you and Malakai regarding this agreement and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral.