MagnetsOnTheCheap.com Terms of Service
Last Revised 03-30-2012
Effective Date: November 18, 2005
Welcome to the Magnets on the Cheap web site, which is located at MagnetsOnTheCheap.com (the
"Web Site"). The following Terms of Service ("TOS") contain the terms that govern
your use of the Web Site and MagnetsOnTheCheap.com Service (as defined below). These TOS
describe your rights and responsibilities and what you can expect from the Magnets on the Cheap Service. Use of the Magnets on the Cheap Web Site constitutes acceptance
of these TOS. MagnetsOnTheCheap.com is a Trademark of Magnets on the Cheap.
Magnets on the Cheap reserves the right to add, delete and/or modify any of the terms
contained in this TOS, at any time and in its sole discretion, by posting a new
agreement on the Magnets on the Cheap Web Site. If any modification is unacceptable
to you, your only recourse is to not use the Web Site and the MagnetsOnTheCheap.com Service.
Your continued use of the Magnets on the Cheap Web Site following posting of a new TOS
on the Magnets on the Cheap Web Site will constitute binding acceptance of the changes.
1. The MagnetsOnTheCheap.com Service.
Magnets on the Cheap provides a number of Internet-based services through the Web Site
(all such services, collectively, the "MagnetsOnTheCheap.com Service"). One such service
enables users to create customized merchandise and magnets (collectively, "Products"). Magnets on the Cheap users may create and purchase
individual Products for their own use.
2. Use of the Web Site and MagnetsOnTheCheap.com Service.
- 2.1 Eligibility. Magnets on the Cheap will only knowingly provide the MagnetsOnTheCheap.com
Service to parties that can lawfully enter into and form contracts under applicable
law. If you are under the age of 18, but at least 13 years of age, you may use the
MagnetsOnTheCheap.com Service only under the supervision of a parent or legal guardian
who agrees to be bound by these TOS. The MagnetsOnTheCheap.com Service is not intended
for children under the age of 13.
- 2.2 Compliance with TOS and Applicable Law. You must comply with all
of the terms and conditions of these TOS, the applicable agreements and policies
referred to below, and all applicable laws, regulations and rules when you use the
MagnetsOnTheCheap.com Service and the Web Site.
- 2.3 Your License to Use the Web Site and the MagnetsOnTheCheap.com Service.
- (a) Magnets on the Cheap solely and exclusively owns all intellectual property and other
rights, title and interest in and to the MagnetsOnTheCheap.com Service and Web Site, except
as expressly provided for in these TOS. For example and without limitation, Magnets on the Cheap owns the trademark MagnetsOnTheCheap.com(TM), the copyrights in and to the Web
Site, and certain technology used in providing the MagnetsOnTheCheap.com Service. You will
not acquire any right, title or interest therein under these TOS or otherwise.
- (b) Magnets on the Cheap grants you a limited revocable license to access and use the
Web Site and the MagnetsOnTheCheap.com Service for its intended purposes, subject to your
compliance with these TOS. This license does not include the right to collect or
use information contained on the Web Site for purposes prohibited by Magnets on the Cheap; to compete with Magnets on the Cheap; create derivative works based on the content
of the Web Site; or download or copy the Web Site (other than page caching). If
you use the Web Site in a manner that exceeds the scope of this license or breach
this TOS, Magnets on the Cheap may revoke the license granted to you, AND PURSUE ANY
OTHER LEGAL COURSE OF ACTION PERMITTED UNDER APPLICABLE STATE OR FEDERAL LAW.
- (c) This Section 2.3 does not pertain to your intellectual property rights. For
information regarding your intellectual property rights, please see Section 4.1.
- 2.4 Third-Party Services. Magnets on the Cheap may use third parties to
provide certain services accessible through the Web Site. Magnets on the Cheap does
not control those third parties or their services, and you agree that Magnets on the Cheap will not be liable to you in any way for your use of such services. These third
such terms and policies as well as these TOS when you use these services. If any
such terms or policies conflict with Magnets on the Cheap's TOS, agreements or policies,
you must comply with Magnets on the Cheap's TOS, agreements or policies, as applicable.
3. General Rules.
- 3.1 Prohibited Use. You may only use the MagnetsOnTheCheap.com Service as
expressly permitted by Magnets on the Cheap. You may not cause harm to the Web Site
or the MagnetsOnTheCheap.com Service. Specifically, but not by way of limitation, you may
not: (i) interfere with the MagnetsOnTheCheap.com Service by using viruses or any other
programs or technology designed to disrupt or damage any software or hardware; (ii)
modify, create derivative works from, reverse engineer, decompile or disassemble
any technology used to provide the MagnetsOnTheCheap.com Service; (iii) use a robot, spider
or other device or process to monitor the activity on or copy pages from the Web
Site, except in the operation or use of an internet "search engine", hit counters
or similar technology; (iv) collect electronic mail addresses or other information
from third parties by using the MagnetsOnTheCheap.com Service; (v) impersonate another
person or entity; (vi) use any meta tags, search terms, key terms, or the like that
contain Magnets on the Cheap's name or trademarks; (vii) engage in any activity that
interferes with another user's ability to use or enjoy the MagnetsOnTheCheap.com Service;
or (viii) assist or encourage any third party in engaging in any activity prohibited
by these TOS.
- 3.2 Prohibited Use Promise. By using the Magnets on the Cheap Web Site,
you are promising that you are not using the MagnetsOnTheCheap.com Service or the Web Site
for any of the Prohibited Uses.
4. Use of Your Content.
You do not lose ownership of the Content that you design on, or upload to, the Web
Site. By uploading Designs to the Web Site or creating Designs with Magnets on the Cheap's design tools, however, you grant the following licenses to Magnets on the Cheap:
the nonexclusive, worldwide, transferable, sublicensable right to copy, crop, reproduce,
publicly display, sell, and distribute the Design in or on Products and in advertising,
marketing, samples, and promotional materials for the purpose of promoting the Web
Site and Products; and the right to make modifications to your Design as Magnets on the Cheap, in its sole discretion, finds necessary to achieve the above listed purposes.
You may remove the Content you designed at any time, and you retain any copyright
and other intellectual property rights in that Content. If you choose to remove
Content that you designed or uploaded and notify Magnets on the Cheap of your intention
to terminate the licenses described in the above paragraph, those licenses will
terminate, except that Magnets on the Cheap may fulfill all orders that are in any way
derived from that Content placed prior to notice of termination and may continue
to use said Content in marketing and promotional materials.
5. Reservation of Rights.
- 5.1 Monitoring. Magnets on the Cheap reserves the right, but does not assume
the obligation, to monitor transactions and communications that occur through the
Web Site. If Magnets on the Cheap determines, in its sole and absolute discretion, that
you or another Magnets on the Cheap user have breached or will breach a term of these
TOS or that such transaction or communication is inappropriate, Magnets on the Cheap
may cancel such transaction or take any other action to restrict access to or the
availability of any material that we may consider objectionable, without any liability
to you or any third party.
- 5.2 Modification of the Service. Magnets on the Cheap may modify the MagnetsOnTheCheap.com
Service at any time with or without notice to you, and will incur no liability for
When you submit questions, comments, suggestions, ideas, message board postings,
material submitted via web forms, contest entries, communications or any other information
("Submissions"), you grant Magnets on the Cheap permission to use such Submissions for
marketing and other promotional purposes, including the right to sublicense. You
agree that Magnets on the Cheap will have no obligation to keep any Submissions confidential.
You will not bring a claim against Magnets on the Cheap based on "moral rights" or the
likes arising from Magnets on the Cheap's use of a Submission. This Section does not
apply to your Content that will appear as part of your product that you use in connection
with MagnetsOnTheCheap.com Service.
7. Representations and Warranties.
- 7.1 Mutual Representations and Warranties. You represent and warrant
to Magnets on the Cheap and Magnets on the Cheap represents and warrants to you: (i) that
you or it has the full power and authority to enter into and perform under these
TOS, (ii) the execution and performance of your or its obligations under these TOS
do not constitute a breach of or conflict with any other agreement or arrangement
by which you or it is bound, and (iii) these TOS are a legal, valid and binding
obligation of the party entering into these TOS, enforceable in accordance with
their terms and conditions.
- 7.2 By You. You represent and warrant to Magnets on the Cheap that, your
use of the MagnetsOnTheCheap.com Service and any order that you place with Magnets on the Cheap: (i) will not infringe the copyright, trademark, patent, trade secret, right
of privacy, right of publicity or any other legal right of any third party and (ii)
will comply with all applicable laws, rules, and regulations. You further represent
and warrant to Magnets on the Cheap that: (i) there are no claims, demands or any form
of litigation pending, or to the best of your knowledge, threatened with respect
to any of your Content; (ii) Magnets on the Cheap will not be required to make any payments
to any third party in connection with its use of your Content, except for the expenses
that Magnets on the Cheap incurs in providing the MagnetsOnTheCheap.com Service; (iii) the
use of any instructions, formulae, recommendations, or the like contained in your
Content will not cause injury to any third party; and (iv) your Content does not
contain viruses or any other programs or technology designed to disrupt or damage
any software or hardware.
8a. Disclaimers and Exclusions.
- 8a.1 DISCLAIMER OF WARRANTIES. Magnets on the Cheap PROVIDES THE WEB SITE
AND MagnetsOnTheCheap.com SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. Magnets on the Cheap DOES NOT REPRESENT OR WARRANT THAT THE WEB SITE, MagnetsOnTheCheap.com SERVICE OR ITS
USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii)
WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE
HARDWARE OR SOFTWARE YOU USE. Magnets on the Cheap MAKES NO WARRANTIES OTHER THAN THOSE
MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY
- 8a.2 EXCLUSION OF DAMAGES. Magnets on the Cheap WILL NOT BE LIABLE TO YOU
OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL
DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL)
ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE MagnetsOnTheCheap.com SERVICE,
BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8b. Limitation of Liability.
8b.1 LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS
AND WARRANTIES UNDER THESE TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS
UNDER THESE TOS, IN NO EVENT WILL THE LIABILITY OF Magnets on the Cheap EXCEED THE VALUE
OF SIGNS RECEIVED OR SERVICES RENDERED. THE VALUE OF SIGNS OR SERVICES ARE LIMITED
TO THE STATED VALUE ON THE Magnets on the Cheap WEB SITE OR AS STATED BY AN AUTHORIZED
Magnets on the Cheap AGENT.
You agree to indemnify and hold Magnets on the Cheap and its employees, representatives,
agents, affiliates, directors, officers, managers and shareholders (the "Parties")
harmless from any damage, loss, or expense (including without limitation, attorneys'
fees and costs) incurred in connection with any third-party claim, demand or action
("Claim") brought against any of the Parties alleging that you have breached any
of these TOS through any act or omission, including but not limited to any claim
that your content infringes or violates the legal rights of any other party. If
you have to indemnify Magnets on the Cheap under this Section, Magnets on the Cheap will
have the right to control the defense, settlement, and resolution of any Claim at
your sole expense. You may not settle or otherwise resolve any Claim without Magnets on the Cheap's express written permission.
- 10.1 Termination. Magnets on the Cheap may suspend or terminate your use
of the Web Site or MagnetsOnTheCheap.com Service if it believes, in its sole and absolute
discretion, that you have breached a term of these TOS.
- 10.2 Survival. Notwithstanding Section 10.1 above, these TOS will survive
indefinitely unless and until Magnets on the Cheap chooses to terminate them
- 10.3 Effect of Termination. If you or Magnets on the Cheap terminates your
use of the Web Site or the MagnetsOnTheCheap.com Service, Magnets on the Cheap may delete any
Content or other materials relating to your use of the MagnetsOnTheCheap.com Service on
Magnets on the Cheap's servers or otherwise in its possession and Magnets on the Cheap will
have no liability to you or any third party for doing so.
All notices required or permitted to be given under these TOS will be in writing
and delivered to the other party by any of the following methods: (i) U.S. mail,
(ii) overnight courier, or (iii) electronic mail. If you give notice to Magnets on the Cheap, you must use the following addresses:
11525A Stonehollow Dr. Suite 100. Austin, TX. 78758. TOS@MagnetsOnTheCheap.com. If Magnets on the Cheap
provides notice to you, Magnets on the Cheap will use the contact information provided
by you to Magnets on the Cheap. All notices will be deemed received as follows: (i)
if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by
overnight courier, on the date receipt is confirmed by such courier service, or
(iii) if by electronic mail, 24 hours after the message was sent, if no "system
error" or other notice of non-delivery is generated. If applicable law requires
that a given communication be "in writing," you agree that email communication will
satisfy this requirement.
12. Dispute Resolution.
All disputes arising out of, relating to or connected with these TOS or your use
of any part of the MagnetsOnTheCheap.com Service will be exclusively resolved under confidential
binding arbitration held in Travis County, Texas before and in accordance with the
Rules of the American Arbitration Association, by a sole arbitrator applying Texas
law (without regard for conflicts of law principles). The arbitrator's award will
be binding and may be entered as a judgment in any court of competent jurisdiction.
To the fullest extent permitted by applicable law, no arbitration under these TOS
will be joined to an arbitration involving any other party subject to these TOS,
whether through class arbitration proceedings or otherwise. Any action to enforce
an arbitrator's award will be brought exclusively in a federal or state court located
in Travis County, Texas. Each party hereby irrevocably submits to the personal jurisdiction
of the Federal and Texas State courts in Travis County. By entering into these TOS,
you hereby irrevocably waive any right you may have to join claims with those of
others in the form of a class action or similar procedural device. Any claim arising
out of, relating to or connected with these TOS or your use of any part of the MagnetsOnTheCheap.com
Service must be asserted individually. Notwithstanding anything to the contrary
in this Section 12, either party may seek equitable relief, including, without limitation,
injunctive relief and specific performance, without the requirement of posting a
bond or other security or proving money damages are insufficient, from a court of
These TOS will be binding upon each party hereto and its successors and permitted
assigns, and governed by and construed in accordance with the laws of the State
of Texas without reference to conflict of law principles. These TOS will not be
assignable or transferable by you without the prior written consent of Magnets on the Cheap. These TOS (including all of the policies and other Agreements described in
this TOS, which are hereby incorporated herein by this reference) contain the entire
understanding of the parties regarding its subject matter, and supersedes all prior
and contemporaneous agreements and understandings between the parties regarding
its subject matter. No failure or delay by a party in exercising any right, power
or privilege under these TOS will operate as a waiver thereof, nor will any single
or partial exercise of any right, power or privilege preclude any other or further
exercise thereof or the exercise of any other such right, power, or privilege. You
and Magnets on the Cheap are independent contractors, and no agency, partnership, joint
venture, or employee-employer relationship is intended or created by these TOS.
The invalidity or unenforceability of any provision of these TOS will not affect
the validity or enforceability of any other provision of these TOS, all of which
will remain in full force and effect.