Kaily Art, Inc. (www.KailyArt.com)
TERMS AND CONDITIONS FOR SALES
In these Terms, Kaily Art, Inc. may also be referred to as “Seller,” “us” or “we” and the party placing an order at the Site may be referred to as “you” or “Buyer.” Unless otherwise specifically agreed in writing by Seller, these Terms shall apply to any and all orders placed by you with us at the Site or otherwise.
Please review these Terms regularly, as they may be revised or modified from time to time. By using the Site after a change or modification to the Terms, you agree to follow and be bound by the Terms as so modified or changed.
1. ACCEPTANCE OF ORDERS. Seller's acceptance of any orders, and all offers and sales by Seller shall be subject to and are expressly conditioned upon Buyer's assent to the terms and conditions of these Terms. The agreement between the parties consists of these Terms, Seller’s quotation, if any, and Seller’s order acknowledgement. Buyer's acceptance of any offer by Seller must be made on such terms and conditions exactly as offered by Seller. Any terms and conditions of Buyer which are different from or in addition to those contained in these Terms are objected to by Seller and shall be of no effect unless specifically agreed to in writing by Seller. Commencement of performance or shipment shall not be construed as acceptance of any of Buyer's terms and conditions which are different from or in addition to those contained in these Terms. If an agreement is not earlier formed by mutual agreement in writing, acceptance by Buyer of products or services furnished by Seller pursuant hereto shall be deemed Buyer’s assent to all of the Terms contained herein. These terms shall be governed by the laws of the State of Florida as if made and to be performed entirely within such state. The UN Convention on the International Sale of Goods shall not apply. Dollar amounts are expressed in United States dollars.
2. ORDERS AND PRICES. Proposals for Seller to supply products to Buyer are valid for 30 days from issuance unless otherwise agreed to in writing by Seller. Orders may not be cancelled or modified, either in whole or in part, without Seller’s express written consent. If Seller consents to any order modification or cancellation, it may impose an order modification or cancellation fee. All prices are as stated in Seller’s quote and specifically override any prices referenced in Buyer’s purchase order. Prices for orders for immediate shipment are prices in effect at time of receipt of order. Qualifying orders specifying future delivery will be invoiced at prices and terms in effect at time of shipment. The prices stated on the Site or otherwise provided to Buyer are in U.S. dollars and do not include transportation, insurance or any sales, use, excise or other applicable taxes, duties, fees or assessments imposed by any jurisdiction. All applicable taxes will be paid by Buyer, unless Buyer provides Seller with appropriate tax exemption certificates, and if Buyer requests that Seller ship products to Buyer’s customer, Buyer must provide Seller with a valid resale certificate or other valid exemption certificate for its customer. Buyer hereby indemnifies and holds harmless Seller for any and all taxes, costs, fees, expenses, penalties, or other charges if Buyer cannot provide adequate evidence that it remitted the applicable sales tax to the destination state. Any amounts paid at any time by Seller that are the responsibility of Buyer shall be invoiced to Buyer and reimbursed to Seller. All prices and other terms are subject to correction for typographical or clerical errors, which Buyer acknowledges may occur from time to time due to no fault of Seller.
3. TERMS OF PAYMENT. All payments must be made in U.S. dollars. Buyer shall pay for products by credit card at the time an order is placed. All credit card purchases are subject to authorization by your card issuer. We may process payments immediately upon placement of an order, or, at Seller’s discretion, at the time of shipment, unless another time for payment is specified in the order acknowledgement (in which case payment shall be due at the time so specified). Each shipment shall be considered as separate and independent transaction and payment for each shipment shall be due accordingly. All products shall remain the property of Kaily Art Inc. until we have delivered the products to the address specified and payment has been made in full. If your payment is not received or cancelled and you have received the products ordered, you must pay for or return those products to us in accordance with our return instructions and in the same condition that you received them at your own expense. If you fail to do so within 30 days after your receipt of the product, we may collect or arrange for collection of the products at your expense. We reserve the right to charge you for any and all damage to any products that are the subject of an unpaid order.
5. Acceptance of your order. Completion of the online checkout process does not constitute our acceptance of your order or offer to purchase products or services from us. Our acceptance of your order will take place only when we ship the product(s) or commence the services that you ordered from us. We will notify you by email as soon as possible to acknowledge that we have received and are processing your order. The duration of our agreement with you will commence when you place your order and accept payment and dispatch the products purchased. If we cannot supply you with the product or service you ordered, we will not process your order, inform you of this in writing (including email) and, if you have already paid for the product or service, we will refund you in full as soon as reasonably possible.
6. Delivery and Collection. Delivery charges and time tables vary depending on the type of product ordered, the service you select and the delivery address. Certain products and services may be subject to alternative delivery charges, restrictions and/or time tables. Delivery will be to a U.S address only. If no one is available at a residential or other address at the time of delivery, the order will be left at the door, or a note will be left to advise where your order is located. Free delivery may apply in the U.S. when you order three (3) or more items online in a single order delivered to a single address. All risk in the products you order (including risk of loss and/or damage to the products) shall pass to you when they are delivered to the delivery address specified in your order. We shall be under no liability for any delay or failure to deliver products if the delay or failure is cause, in whole or in part, by circumstances beyond our control. Seller may, at its option, elect to extend credit to Buyer. There are no discounts for early payment. If Seller extends credit to Buyer, invoices will be issued upon shipment and payment shall be due in full within thirty (30) days from the invoice date or such other date specified in the agreement between the parties. Seller reserves the right to change the amount of or withdraw any credit extended to Buyer at any time in Seller’s sole discretion. Unless otherwise agreed in writing by Seller, amounts owed for services will be invoiced monthly or, if sooner, upon completion of the work. Payment of such invoices is due within thirty (30) days from the invoice date. Amounts not paid when due shall be subject to interest at the rate of one and one-half percent (1½%) per month or, if less, the maximum rate permitted by law. In the event of the bankruptcy or insolvency of Buyer, or the filing of any proceeding by or against Buyer under any bankruptcy, insolvency or receivership law, or in the event Buyer makes an assignment for the benefit of creditors, Seller may, at its election and without prejudice to any other right or remedy, exercise all rights and remedies granted Seller in this Section 6 as in the case of a default by Buyer under these Terms.
7. DELIVERY, TITLE AND RISK OF LOSS. Seller reserves the right to ship within the continental United States via routing of Seller’s choice, but Buyer is responsible for all insurance and any sales, use, excise or other taxes, duties, fees or assessments imposed by any jurisdiction. We reserve the right to charge a shipping and handling fee on any orders. WHOLESALERS OR DISTRIBUTORS LOCATED IN THE CONTINENTAL UNITED STATES ARE NOT AUTHORIZED TO SELL OR SHIP PRODUCTS OUTSIDE OF THE CONTINENTAL UNITED STATES WITHOUT SELLER’S PRIOR WRITTEN APPROVAL. Unless otherwise agreed to in writing by Seller, products shall be shipped via USPS, UPS, or Fedex from the Seller’s manufacturing facilities or inventory hub to any location in the continental U.S. designated by, and shall be deemed delivered to Buyer when delivered to the address provided by the buyer, and acknowledged the by transportation company as delivered. If special routing or expedited transportation is requested, Buyer is responsible for any additional expense. Unless otherwise agreed to in writing by Seller, all transportation charges and expenses shall be paid by Buyer, including the cost of any insurance against loss or damage in transit which Seller may obtain at Buyer’s written request. Seller hereby reserves, and Buyer hereby grants to Seller, a purchase money security interest in all products purchased under this Agreement, together with all proceeds thereof, including insurance proceeds. Such security interest secures all of Buyer’s obligations arising under this Agreement, and any other agreements between Buyer and Seller, until all amounts due Seller have been paid in full. Buyer agrees upon Seller’s request to sign appropriate financing statements evidencing Seller’s security interest. Subject to the security interest reserved to Seller, title and risk of loss and/or damage to products shall pass to Buyer upon delivery of the products to the transportation company at the shipping point. Confiscation or destruction of or damage to products shall not release, reduce or in any way affect the liability of Buyer. In the event Buyer rejects or revokes acceptance of any products for any reason, all risk of loss and/or damage to such products shall nonetheless remain with Buyer unless and until the same are returned at Buyer's expense to such place as Seller may designate in writing. All products must be inspected upon receipt and claims filed by Buyer with the transportation company when there is evidence of shipping damage, either concealed or external.
8. Delays. Where the supply of any product or service ordered is delayed or prevented for reasons beyond our control (for example, material shortages, import delays or higher than anticipated demand) we will make every effort to keep you informed of the order status but shall be under no liability to you for any such delay or failure.
9. Changes to your order. Changes to an order may be requested up until the day before shipment or production of the products ordered. To request any changes to your order, you must email us at email@example.com. Such change(s) shall only be effective upon your receipt of an acknowledgement from us that the change request has been accepted. Any change to an order may result in a change to your expected delivery date and/or the price for the product(s). (You will be charged the then-current selling price on the day your order change request has been accepted.)
10. Damaged, Defective or Non-Conforming Goods. In the eventthe your product is delivered damaged, defective or non-conforming, you should notify us immediately at firstname.lastname@example.org, but no later than five (5) business days after your order has been delivered. We will arrange for replacement of any goods confirmed to be damaged, defective or non-conforming, and reserve the right to impose shipping and handling charges for any returns or replacements. Failure to timely notify us of any alleged damage, defect or non-conformance shall constitute a waiver of any claim.
11. PERFORMANCE. Seller shall not be liable for any delay in delivery or failure to perform due to acceptance of prior orders, strike, lockout, riot, war, fire, acts of God, accident, delays caused by any subcontractor or supplier or by Buyer, technical difficulties, failure or breakdown of machinery or components necessary for order completion, inability to obtain or substantial rises in the price of labor or materials or manufacturing facilities, curtailment of or failure to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation, order or direction, whether valid or invalid, of any governmental authority or instrumentality thereof, or due to any circumstances or any causes beyond its control, whether similar or dissimilar to the foregoing and whether or not foreseen. As used herein, "performance" shall include, without limitation, fabrication, shipment, delivery, assembly, installation, testing and warranty repair and replacement, as applicable. Buyer agrees that any delay in delivery or failure to deliver or perform any part of these Terms shall not be grounds for Buyer to terminate or refuse to comply with any provisions hereof and no claim or penalty of any kind shall be effective against Seller for such delay or failure; provided, however, that if the delay or failure extends beyond six (6) months from the originally scheduled date either party may, with written notice to the other, terminate an order without further liability.
12. INTELLECTUAL PROPERTY RIGHTS. The sale of products or provision of services hereunder does not convey any express or implied license under any patent, copyright, trademark or other proprietary rights owned or controlled by Seller, whether relating to the products sold, service provided, or any manufacturing process or other matter. All rights under any such patent, copyright, trademark or other proprietary rights are expressly reserved by Seller. Furthermore, Buyer agrees not to infringe, directly or indirectly, any intellectual property right of Kaily Art, Inc. or its subsidiaries or affiliates, including, but not limited to, the copyright in the design and text of its products.
The trademark KAILY ART and its associated logos are trademarks or service marks of Kaily Art, Inc. Unless otherwise noted, you should assume that everything you see, hear, or otherwise receive from the Site is likewise proprietary to Kaily Art, Inc. protected under applicable U.S. and international law. Content includes, without limitation, images, graphics, photographs, trademarks, logos, text, documents, sounds, the Site as a whole, and the selection, coordination and arrangement of content. Use of any Kaily Art Inc. trademark, service mark, logo or trade dress or any Kaily Art, Inc. copyrighted material is strictly prohibited.
13. Links. Any links from the Site to third party sites are provided only as a convenience. Your use of outside links is at your sole risk. Such links do not constitute endorsement of any third party, its site, or its goods or services. Kaily Art, Inc. is not responsible for any outside sites’ goods or services linked to or from the Site, and disclaims all liability for any damages you may experience by using such outside sites, goods or services. If you have any concerns regarding any outside site linked to or accessed from the Site, please direct them to the owner or operator of the outside site. You may not create links to the Site without Kaily Art Inc.’s prior written consent. You may not use any "framing" or similar techniques to enclose any portion of the Site. If permission is granted, you may not link to any pages other than the Kaily Art, Inc. homepage.
15. LIMITED COMMERCIAL WARRANTY. Seller grants to the original purchaser a limited warranty for each of Seller’s products. Seller reserves the right to modify its limited warranty at any time in its sole discretion. Any warranty applicable to Seller’s products may be contained in or on the packaging containing such products.
16. LIMITATION OF LIABILITY AND CLAIMS. SELLER'S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE SHALL IN NO EVENT EXCEED THE AMOUNT, IF ANY, RECEIVED BY SELLER HEREUNDER. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL LOSS OR DAMAGES OF ANY KIND, HOWEVER CAUSED, OR ANY PUNITIVE, EXEMPLARY OR OTHER DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR PRODUCTS OR SERVICES FURNISHED BY SELLER MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED.
17. Liability. There are certain liabilities which we cannot exclude by law and nothing in these Terms shall be deemed to limit any such liability. We shall only be liable for losses that are a natural, foreseeable consequence of our breach of any of these Terms. We will not be liable to you if we are prevented or delayed from complying with our obligations under these Terms by anything you (or anyone acting on your behalf) does or fails to do or due to events which are beyond our reasonable control. You must follow any advice we provide to keep products we supply to you safe (including any instructions or product manuals provided with the products). We cannot accept liability for damage to products we have supplied which is caused by your failure to follow this advice or use the product in the manner intended.
18. Assignment, waiver and third party rights. We may update or amend these Terms from time to time to comply with law or to meet our changing business requirements without notice to you. Any updates or amendments will be posted on the Site. You may not assign or sub-contract any of your rights or obligations under these Terms to any third party unless we agree in writing. We may assign, transfer or sub-contract any of our rights or obligations under these Terms to any third party at our discretion. No relaxation or delay by us in exercising any right or remedy under these Terms shall operate as waiver of that right or remedy or shall affect our ability to subsequently exercise that right or remedy. Any waiver must be agreed by us in writing.
19. Dispute Resolution; Attorney’s Fees. These Terms and the parties’ relationship will be construed in accordance with the laws of the State of Florida. In the event of a default in payment by Buyer, or any claim arising out of these Terms or otherwise relating to the Site or our business, action against you may be commenced in a state or federal court of competent jurisdiction located in the Southern District of Florida. Buyer waives any objection to jurisdiction or venue in such courts. Buyer agrees to pay Seller's expenses, including reasonable attorney's fees and expenses, incurred by Seller in enforcing its rights.
20. Indemnification. You agree to assume full responsibility for any use of information, goods or services offered on or through the Site. You understand and agree that Kaily Art, Inc. and its affiliates and subsidiaries will not be responsible or liable for any claim, loss or damage arising from the use of any such information, goods or services. You agree to indemnify, defend and hold harmless Kaily Art, Inc. and its affiliates and subsidiaries, its officers, directors, owners, agents, employees, affiliates, licensees and licensors from and against any and all claims, damages, costs and expenses, including reasonable attorneys' fees, arising from or related to your use of the Site or your violation of any of the Terms or Kaily Art, Inc.’s rights. This indemnification applies even if Kaily Art, Inc. and/or its affiliates or agents have been negligent in the creation, maintenance or content of the Site.
21. Export Control. Seller’s export of products, and any technical information related thereto, may be subject to United States and/or other national or international laws and regulations controlling the export and re-export of technical data and products, or limiting the export of certain products to specified countries (e.g., embargo regulations). Seller shall not be obligated under these Terms and to export, transfer or deliver any products or related technical information to Buyer if prohibited by applicable law or until all necessary governmental authorizations have been obtained. Seller shall not be liable under these Terms for any expenses or damages resulting from failure to obtain or delays in obtaining any required government authorizations. Buyer shall comply fully with all export administration and control laws and regulations of the U.S. government and/or other national or international (e.g. UN) laws and regulations as may be applicable to the export, re-export, resale or other disposition of any products purchased from Seller.
22. Product Safety. Buyer shall comply fully with all industry safety standards applicable to the manufacture, distribution or sale of items incorporating the products supplied by Seller, including but not limited to American National Standards Institute (ANSI), including all marking, labeling, and supplemental user and service information (if any) required by the standards, where applicable. Buyer shall comply fully with all applicable safety-related laws, rules and regulations of any governmental body having jurisdiction to regulate the manufacture, distribution or sale of items incorporating the products supplied by Seller. Buyer shall obligate all persons and entities buying such products from Buyer (other than end users) to comply with such industry standards, laws, rules or regulations applicable to such person or entity. Buyer shall defend and hold Seller harmless against any expense, loss, costs or damages relating to any claimed failure by Buyer to comply with such industry standards, laws, rules or regulations or from any bodily injury, illness or property damage resulting from products manufactured by Buyer which incorporate the products supplied by Seller.
23. Construction of Terms; Entire Agreement. No modification, amendment, rescission, waiver or other change in these Terms shall be binding on Seller unless agreed to in writing by Seller. If a court of competent jurisdiction should find any provision or portion of the Terms to be void or unenforceable, that provision or portion will be enforced to the maximum extent permissible to effect the intent of the Terms, and the remainder of the Terms will remain in full force and effect. No waiver of any of the Terms shall be effective unless in writing and signed by the party to be charged. No waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under the Terms. The Terms are the entire agreement between you and Kaily Art, Inc. relating to the Site, and any other agreement regarding the subject matter of the Terms is superseded and has no force or effect. All rights not expressly granted herein are reserved