Last Updated: June 10, 2024

Please read these Pre-Order and Sale Terms (“Terms”) as they apply to all pre-orders and purchase orders you (“you” or “your”) submit to FKR INC. (“FKR INC”, “we”, “us” or “our”) for any of our Magical Toys products (each, a “Product”). 

Our Privacy Policy describes how we collect, use, share or otherwise process information about you. The terms of our Privacy Policy are incorporated by reference into these Terms.

These Terms contain an agreement to arbitrate, which requires that you and FKR INC arbitrate certain claims by binding, individual arbitration instead with the sole exception of claims that qualify for small claims court (see Section 11 “Dispute Resolution”). If you do not agree to these Terms, do not submit a pre-order or purchase order.

IF YOU ARE ORDERING A BETA PRODUCT (AS INDICATED ON THE PRODUCT ORDER PAGE), PLEASE CAREFULLY REVIEW THE ADDITIONAL TERMS SET FORTH IN SECTION 10 AS THEY MODIFY AND TAKE PRECEDENCE OVER THE REMAINDER OF THESE TERMS.

1. Eligibility; Order Acceptance

1. Pre-Orders and Orders. Each pre-order or purchase order (together, “Orders”) you submit constitutes an offer to purchase the applicable Product(s). You will be charged the full purchase price of the Products, plus applicable taxes and other government charges, at the time you place a Pre-Order. 

2. Declined Orders. We may decline any Order at any time and for any reason at our discretion (including oversubscription of Pre-Orders). If we decline your Order, we will notify you at the email address you provided and, as your sole and exclusive remedy and our sole and exclusive liability, refund the amount you paid to your original method of payment. 

3. Required Information. When placing an Order, you will be required to provide certain information, such as your address and billing information. You represent and warrant that all such information is accurate, and you will ensure that such information is kept current. FKR INC will not be responsible or have any liability for information that is or becomes inaccurate. You can update your information at any time prior to your Product being prepared for shipping by sending an e-mail to info@magical.toys.

4. Eligibility. You may only submit Orders for your personal use and not for any business or commercial purposes. To submit an Order, you must be at least 18 years of age, a resident of the United States, and will take delivery of your Product in the United States. By submitting an Order, you represent and warrant that you meet the forgoing eligibility requirements. 

2. Pre-Orders

1. Additional Terms. Some additional terms apply to Orders you place for Products that are still in development (“Pre-Orders”). If you do not agree to the terms of this Section 2, do not place an Order until the Product is commercially released.

2. Pre-Order Fulfillment. You acknowledge and agree that: (a) Products you Pre-Order are not yet ready for delivery and the specifications for a Product you Pre-Order may change between when you place a Pre-Order and when the Product ships (including the Interactive Features described in Section 5 (Interactive Features)); and (b) shipping of Pre-Ordered Products may be delayed or such Products may never ship, in which case we will cancel your Order and refund you in accordance with Section 3.2.

3. Release of Pre-Order Products. While we currently anticipate shipping Products beginning late 2024, FKR INC does not represent or warrant that we will be able to ship any Products by any particular date. If for any reason you decide that you do not wish to continue to wait for your Product, you may cancel your reservation as provided for in Section 3, below. If we are unable to commence shipping the Products on or before the one-year anniversary of your placing the Pre-Order, we will cancel your Pre-Order and issue you a full refund. 

4. Priority. We generally build and ship Products according to the order in which the Pre-Order is received. However, we may need to build and use Products for a variety of purposes, such as testing and evaluation, and the date of your Pre-Order may not correspond to the order in which your Product is built and shipped.

3. Cancellations. 

1. Order Cancellations by You. You may cancel your Order and request a refund at any time before we notify you that we are preparing your Order for shipment by emailing us at support@magical.toys. Once we notify you that your Order is being prepared for shipment, your Order becomes non-refundable and non-cancellable. 

2. Order Cancellations by Us. Pre-Orders may be canceled by FKR Inc at any time prior to shipping. This may happen if we cannot overcome administrative, technical, legal or regulatory obstacles to fulfilling your Pre-Order, or if we are unable to obtain all necessary certificates and permits for the sale and distribution of the Products.

3. Refunds for Cancellation. If you cancel your Order in accordance with Section 3.1 or we cancel your Pre-Order in accordance with Section 2.3 or 15, we will issue you a full refund to your original method of payment. Such refund represents your sole and exclusive remedy and our sole and exclusive liability, unless otherwise required by law, for any canceled Order or Pre-Order.

4. Shipping 

Currently we only ship to addresses within the United States. If shipping costs to the address you provide are higher than the shipping costs you paid at the time you submitted your Pre-Order, we may, in our sole discretion, require you to pay additional shipping fees or refund the full amount you paid.

5. Interactive Features

1. Interactive Features. You acknowledge and agree that certain interactive features and functionality of the Products (“Interactive Features”) may: (a) require you to register your Product with us; (b) depend on an active internet connection; (c) require a paid subscription; and (d) be subject and require your agreement to additional terms and conditions.

2. Subscriptions. Each Pre-Order entitles you to three (3) months of Interactive Features at no additional charge, commencing on the date you register your Product with us. Thereafter, your continued use of the Interactive Features will be subject to and in accordance with FKR Inc’s then-current applicable terms and pricing. However, a subscription for Interactive Features is not required to purchase a Product.

3. Termination of Interactive Features. You agree that we may terminate your access to any Interactive Features in whole or in part at any time, including if we discover or have a good faith reason to believe that you are using the Products in violation of any applicable laws, rules or regulations, or otherwise in violation of any applicable terms. 

6. Intellectual Property

We and our licensors own all intellectual property rights embodied in or related to the Products and Interactive Features. If we accept your Order, you will not acquire any interest or rights in our intellectual property, and your use of the Product will be subject to these Terms and any other additional license terms and restrictions that will be provided with the Product. If you do not agree to the additional terms, you may return the Product to us before using it, and we will refund the full amount you paid for the Product. We reserve all rights in and to the Product not granted expressly in these Terms or other additional license terms.

7. Indemnification

To the fullest extent permitted by applicable law, you will indemnify, defend and hold harmless FKR Inc and our officers, directors, agents, partners and employees (individually and collectively, the “FKR Inc Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to: (a) your placement of an Order, (b) your actual or alleged use of a Product other than in accordance with its available documentation, if any; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your violation of any applicable law, rule or regulation. You agree to promptly notify FKR Inc of any third-party Claims, cooperate with FKR Inc in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that FKR Inc will have control of the defense or settlement, at FKR Inc’s sole option, of any third-party Claims. This indemnity is in addition to, and does not limit any other remedies available to any FKR Inc Parties.

8. Disclaimers

YOUR USE OF OUR PRODUCTS AND INTERACTIVE FEATURES IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US, OUR PRODUCTS AND INTERACTIVE FEATURES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, FKR INC DOES NOT REPRESENT OR WARRANT THAT INTERACTIVE FEATURES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE FKR INC ATTEMPTS TO MAKE YOUR USE OF THE PRODUCT AND INTERACTIVE FEATURES SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR PRODUCTS, INTERACTIVE FEATURES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCTS AND INTERACTIVE FEATURES.

9. Limitation of Liability

1. EXCEPT FOR LIABILITY ARISING FROM A FKR INC’S GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT, FKR INC AND ITS AFFILIATES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR OTHERWISE, FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF FKR INC OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF FKR INC AND ITS AFFILIATES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR OUR PRODUCTS, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE GREATER OF: (a) $100; OR (b) THE AMOUNT YOU PAID FOR THE PRODUCT LESS ANY REFUNDS THAT HAVE BEEN ISSUED TO YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE FOREGOING LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. 

10. BETA PRODUCT TERMS

1. Beta Products. “Beta Product” means any product, service or feature that is designated as a beta or pre-release version of a FKR Inc’s Product or service, or feature thereof, and made available for purchase by you.

2. Terms. If you place an order for a Beta Product, the set forth in this Section 10 apply to your order and the Beta Product. In the event of a conflict between any other terms in these Terms, the terms of this Section 10 prevail to the extent of the conflict. 

3. Functionality. Beta Products include certain software and software-related features, functionality and services that may, at the time of first use or later, require you to agree to separate terms as a condition of such . You acknowledge and agree that we may, in our sole discretion, discontinue, change, or otherwise modify any functionality of a Beta Product and we do not warrant any level of performance or that any features are or will remain part of any Beta Product. 

4. Limited License. Subject to your compliance with the terms of these Terms, upon delivery of a Beta Product to you, Magical Toys hereby grants to you, a limited, personal, revocable, non-exclusive, non-transferable right and license for you to access and use the software included the Beta Product, solely for your personal use not for any commercial purposes or the benefit of any other person or entity. You will not modify, disassemble, decompile, reverse engineer, rent, lease, loan, transfer, or make copies of the Beta Product.

5. Disclaimer. 

1. Without limiting Section 8, YOU UNDERSTAND AND AGREE THAT BETA PRODUCTS DESIGNS AND TECHNICAL FEATURES ARE CURRENTLY UNDER DEVELOPMENT AND THAT THE BETA PRODUCT THAT MAY BE AVAILABLE FOR PURCHASE BY YOU MAY BE MATERIALLY DIFFERENTLY FROM THE LATER COMMERCIALLY AVAILABLE VERSION OF SUCH BETA PRODUCT. BETA PRODUCTS MAY CONTAIN ERRORS AND ARE PROVIDED STRICTLY “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. FKR INC SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY BETA PRODUCT. 

2. SUBJECT TO THE TERMS OF ANY SEPARATE AGREEMENT BETWEEN YOU AND FKR INC, YOU ACCEPT ALL RISKS ARISING OUT OF THE DOWNLOAD, ACCESS AND USE OF ANY SOFTWARE EMBEDDED IN OR USED IN CONNECTION WITH ANY BETA PRODUCT. 

11. Dispute Resolution

1. Arbitration. You agree that, except as set forth in this Section 11, any dispute, claim or controversy arising out of or in connection with any Product, Interactive Feature or our Privacy Policy (each, for the purposes of this Section 11, a “Claim”) will be determined by binding arbitration or small claims court, instead of in courts of general jurisdiction. This Section 11 provision will survive any termination of these Terms, including in the event that FKR Inc ceases to provide the Interactive Features.

2. Small Claims. Subject to the satisfaction of all applicable requirements of small claims court, you or FKR Inc may seek to have a Claim resolved in small claims court. You or FKR Inc bring a Claim in a small claims court in the jurisdiction in which you reside or in the small claims court in closest proximity to your residence. You may also bring a Claim in small claims court in the State of California, USA.

3. U.S. Federal Arbitration Act. Arbitration uses a neutral arbitrator instead of a judge or jury, and is more informal than a lawsuit in court. Arbitration may permit more limited discovery than a court proceeding, and is subject to very limited review by courts. However, the same damages and relief that a court can award can be awarded by arbitrators. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this Section 11. You also agree that you and FKR Inc each hereby expressly waive the right to participate in a class action. 

4. Notice of Claim. In the event that you elect to seek to have a Claim arbitrated, you are required to first send FKR Inc’s registered agent a written notice of your Claim (“Notice of Claim”). Your Notice of Claim should be sent in care of support@magical.toys. Your Notice of Claim should include your mailing address and your email address that we may use to contact you. If FKR Inc elects seek to have a Claim arbitrated, we will send a written Notice of Claim to the address that we have on file for you by certified mail. Any Notice of Claim must include enough information for us to identify you and attempt to resolve your Claim, including both a description of the nature and basis of your Claim, any supporting documentation, and the specific amount of damages or other relief you are seeking. 

5. Informal Dispute Resolution. You and FKR Inc agree that following a Notice of Claim sent by you or FKR Inc and before arbitration commences or the Claim is filed in any small claims court, you and FKR Inc will negotiate in good faith to resolve the Claim prior to any arbitration or court proceeding. You agree to personally participate fully in such discussions, and you may be represented by counsel in the discussions. Similarly, FKR Inc agrees to have a representative participate fully in the discussions. During any period of informal dispute resolution as set forth in this Section 11.5, the statute of limitations and any filing fee deadlines will be suspended for the duration of such discussions.

6. Commencement of Arbitration. If the parties are unable to resolve any claims within sixty (60) days despite good faith efforts, then either you or we may start arbitration or small claims court proceedings. You agree that you may not commence any arbitration or file a Claim in small claims court unless and until sixty (60) days have elapsed following FKR Inc’s receipt of your Notice of Claim. If an arbitration is commenced for a Claim that qualifies for small claims court, you and FKR Inc agree that either you or FKR Inc may elect to have the Claim resolved in small claims court instead and that, upon written notice of a party’s election, the American Arbitration Association (“AAA”) will administratively close the arbitration proceeding. In the event of a dispute regarding whether a Claim qualifies for small claims court, such small claims court, and not an arbitrator, will resolve the dispute and the arbitration proceeding will remain closed unless and until a decision by such small claims court that the Claim should proceed in arbitration. A form of notice and a form to initiate arbitration are available for download at www.adr.org or by calling 1-800-778-7879. 

7. Arbitration Rules. The arbitration of all disputes will be administered by the AAA under its rules in effect at the time the arbitration is commenced, available at www.adr.org or by calling 1-800-778-7879, except to the extent any of those rules conflict with our agreement in these Terms, in which case these Terms will govern to the extent of the conflict. Except as you and FKR Inc otherwise agree, any arbitration hearings will take place in the county (or parish) of either your residence or of the mailing address you provided in your Notice of Claim.

8. Arbitrator Selection. The arbitrator will be either: (a) a retired judge; or (b) an attorney specifically licensed to practice law in the state of California or the state of your residence and will be selected by the parties from the AAA’s National Roster of arbitrators, as follows: (i) the AAA will send the parties a list of five (5) candidates meeting the foregoing criteria; (ii) if the parties cannot agree on an arbitrator from the list, each party will return its list to the AAA within ten (10) days, striking up to two (2) candidates, and ranking the remaining candidates in order of preference; (iii) the AAA will appoint as arbitrator the candidate with the highest aggregate ranking; and (iv) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. All arbitrators appointed pursuant to this process are subject to the disclosure and disqualification procedures set forth in the AAA rules and any applicable laws. The arbitrator is bound by these Terms. Except as otherwise provided below, all issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision.

9. Administrative Conference. The parties agree that an administrative conference with the AAA will be conducted in each arbitration proceeding, and you and a representative of FKR Inc will appear at the administrative conference via telephone. If you fail to appear at the administrative conference, regardless of whether your counsel attends, the AAA will administratively close the arbitration proceeding without prejudice, unless you show good cause as to why you were not able to attend the conference.

10. Decision of Arbitrator. The arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The award will be binding only among the parties and will have no preclusive effect in any other arbitration or other proceeding involving a different party. FKR Inc will not seek to recover its attorneys’ fees and costs in arbitration from you unless the arbitrator finds that either the substance of your claim or the relief sought in your demand for arbitration (a “Demand for Arbitration”) was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Judgment on any award may be entered in any court having jurisdiction. This agreement to arbitrate will not preclude any party to the arbitration from at any time seeking injunctions or other forms of equitable relief in aid of arbitration from a court of appropriate jurisdiction including whether a Demand for Arbitration is filed in violation of these Terms.

11. Injunctive Relief. Unless you or FKR Inc seek to have a Claim resolved in small claims court, the arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. If you seek injunctive or declaratory relief, you agree that the arbitrator may award injunctive or declaratory relief in favor of you alone, and only to the extent necessary to resolve your individual Claim. 

12. Payment of Fees. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. If you initiate an arbitration, you are required to pay AAA’s initial filing fee, but FKR Inc will reimburse you for this filing fee at the conclusion of the arbitration to the extent it exceeds the fee for filing a complaint in a federal or state court in your county of residence or in the State of California. If the arbitrator finds that either the substance of your Claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and FKR Inc will not reimburse your initial filing fee. The parties agree that the AAA has discretion to modify the amount or timing of any administrative or arbitration fees due under the AAA Rules where it deems appropriate, provided that such modification does not increase the AAA fees to you or FKR Inc and you and FKR Inc waive any objection to such fee modification.

13. No Representative Proceedings. You and FKR Inc agree that each may bring Claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, if you have elected an arbitration, unless both you and FKR Inc otherwise agree, the arbitrator may not consolidate any other person’s Claims with your Claims and may not otherwise preside over any form of a representative or class proceeding. If FKR Inc believes that any Claim you have filed in arbitration or in court is inconsistent with the limitations in this paragraph, then you agree that FKR Inc may seek an order from a court determining whether your Claim is within the scope of the Class Action Waiver. If this Class Action Waiver is found to be unenforceable, then the entirety of this Section 11 (Dispute Resolution) will be null and void.

12. Governing Law and Venue

These Terms and the rights and obligations of the parties to and under these Terms will be governed by and construed under the laws of the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles which would apply the laws of any other state or country. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Subject in all respects to Section 10 (Dispute Resolution), for any disputes arising out of these Terms, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the San Francisco, California, USA.

13. Severability

If any portion of these Terms other than Section 10 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable: (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.

14. No Separate Terms

No terms or conditions contained in any writing sent by you to FKR Inc or to any affiliate of FKR Inc (including any printed terms and conditions set forth on any order acknowledgment or invoice sent by you) will have any application to or effect upon, or will be deemed to constitute an amendment to or to be incorporated into, these Terms or otherwise be binding upon FKR Inc or any of its affiliates, unless these Terms will be specifically amended to adopt such other terms and conditions by a written amendment signed by both you and FKR Inc.

15. Changes to these Terms

We may make changes to these Terms at any time and the “Last Updated” date above indicates when these Terms were last modified. Your Order will be subject to the version of the Terms applicable at the time of your Order unless: (a) the Terms are amended in a written agreement between you and FKR Inc; or (b) you otherwise agree to have an updated version of these Terms apply to the Order. You are not required to accept any amended version of these Terms, but FKR Inc may, at its option, cancel all or part of any Order if you do not accept the updated Terms. If FKR Inc cancels your Order under this Section 15, we will provide you a refund in accordance with Section 3.3 (Refunds for Cancellations).

16. Miscellaneous

These Terms constitute the entire agreement between you and FKR Inc relating to the subject matter hereof and supersede all prior agreements, representations and understandings of the parties. The failure of a party to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. You may not transfer, assign or delegate these Terms in whole or in part without our prior written consent, and any such transfer, assignment or delegation without our consent will be void. 

If you are in California, under California Civil Code Section 1789.3, you are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.