TERMS OF SERVICE

Published 6/1/2015

 

Welcome to the Kelby & Co. Website (“the Site). Kelby & Co. provides this site as a service to our customers.  Please read the following terms of service (“Terms”) as they govern your use of our site. By using this Site, you agree to follow and be bound by the following rule below. If you do not agree to these Terms, please do not use this Site in any way.

By accessing our Website (www.kelbyandco.com) you are accepting the Terms and Conditions (“Terms”) below, as well as our Privacy Policy and agree to use our Website only in accordance with these Terms.  We ask that you read these Terms and our Privacy Policy carefully.  If you do not agree with our Terms, you may not use our Website in any way, including but not limited to purchasing any products on our Website.

Our website is owned and operated by Kelby & Co, LLC, (the “Company” or “Kelby & Co”).

We reserve the right, in our sole discretion, to amend, modify or change the Terms at any time and for any reason.   In the instance that we choose to make any modifications, we will indicate such changes with a notice and date of such change and ask that you read and review such changes to our Terms as they are posted.

1. Generally.  In order to use our Website you warrant that:

A. You are at least 18 years old, or if you are a using the Website on behalf of a business, you have the authority to bind the business to the Terms;

B. You are fully able and competent to enter into the Terms, which are to be considered a binding contract;

C. You are not in any way prohibited by any law in any jurisdiction from entering into the Terms;

D. If you choose to submit registration information to us in order to register on our site and/or purchase products, you agree to submit complete and accurate information about yourself and agree that you will only register with one User Account, “User Account;” and

E. In the case where you choose not to create an account with us, you agree that you will not be able to make purchases on our Website but may continue to use the site for all other purposes in accordance with our Terms.

2. Prohibited Use of Our Website.   Your use of our Website is conditioned upon the Terms and related policies posted to our Website and as a user of our Website you are solely responsible for all of your activities, regardless of whether you have chosen to establish an Account.  You may not use our Website for any other reason or purpose that is prohibited by the Terms, unlawful, or encouraging of illegal activity or harmful to our Website and/or Company in any way.  You expressly may not use our Website in any of the following ways:

A. To submit any material that may be considered offensive, obscene, defamatory, or inappropriate in any way, including any comments, reviews, links or other material;

B. To promote illegal activities, which shall include the submission of or creation of any computer viruses, unauthorized access, or breaches to other users’ privacy;

C. To submit materials that are unauthorized (including any unauthorized advertising);

D. Attempt to tamper with our Website in any way, including introducing any viruses or harmful computer codes;

E.  Engage in any commercial activities whatsoever that have not been subject to a prior agreement with the Company;

F. Harass another user, person or group in any way; and

G. Infringe the rights of any third party, including but not limited to Intellectual Property Rights.

3.  Registration and User Accounts.   Any users who desire to make a purchase on our Website must provide certain personal information at checkout.  Kelby & Co. reserves the right to reject, suspend or terminate your User Account if we determine that you have misused your User Account or our Website in any way, or for any reason, including but not limited to the submission of inaccurate information.  In establishing an account to make purchases you agree:

A. All information you have provided to us at the time of checkout is true, accurate, current and complete, and does not in any way violate the rights of any third parties, and if any of such information should change, you will notify us by amending such information to your account, which you have the right to do at any time;  

B. You have the legal capacity and authority to enter into a contract with Kelby & Co. by establishing an account and are at least 18 years old;

C.  You will establish only one account on our Website, which may not be transferred in any way to any third party;

D.  You are responsible for maintaining the security of your own User account at all times and will notify us in instance in which your privacy is breached;

E. Where you have chosen to make a purchase on our Website, the credit card information you provide will be true, accurate, current and complete and that we will have the right to charge your credit card in the amount of the purchase price of the product(s) ordered, together with any shipping costs and taxes.  You authorize us to provide such credit card information securely to our third party merchant servicer for the purpose of processing any transactions, which you have authorized.  In cases where we require that you authenticate your identity for the purposes of a purchase on our Website, you agree to do so and to provide such information as necessary.  You agree that the Company is not responsible for any delays or issues with regard to the processing of a credit card payment on our website, including any instances in which you have been refused authorization to purchase or delayed in any way.

F. You agree that in certain instances where we have been subpoenaed by law or legally required to provide your User Account information that you have provided to us, we shall be allowed to provide such information as appropriate.  Such instances include a request to satisfy any legal process or government request, in addition to any law or regulation, including any investigation or threat to the safety or security of our Users or the public.

4. Purchases On Our Website.  

A. Our Website provides products to our Users for purchase.  When you purchase an item on our Website, the item purchased will shipped to you by us.  

B. In order to process purchases made on our Website, Kelby & Co. works with independent third party vendors who have their own terms that our users agree to by making a purchase on our Website.  We are not responsible for any third party terms, policies or conditions, nor are we responsible for any of the privacy of the information our Users submit to any third parties in making purchases on our Website.

5. Taxes.  When you choose to purchase any item on our Website, you are responsible for paying applicable taxes and duties, which we will provide to you at checkout.

6. Shipping and Returns.  Please see our Return Policy.

7. Insurance.  Kelby & Co. and our vendors are responsible for the items you have ordered on our Website until they have been delivered to you and you have signed for them.  In cases where items are damaged before they arrive, we will work to remedy the order.  We are happy to offer additional insurance options at checkout where applicable.

8. Prohibited Items.  Kelby & Co is not responsible for any purchases you have made for products that are prohibited from being purchased or received in your jurisdiction.

9. Proprietary Rights. You agree that all of the Content posted on our Website is the property of Kelby & Co., our designers, vendors, partners, or licensors, which includes all logos, graphics, images, copy, icons, style elements, and related material (“Content”) and that such Content is protected by copyright, trademark and other proprietary laws.  Any rights not expressly granted herein, are reserved to Kelby & Co.  Unless otherwise permitted in the Terms, you agree that you will not, nor will you cause any other party to:

A. Manipulate, decompile, copy, store, reproduce, rearrange, modify, distribute or disseminate Kelby & Co.’s software, code, content, or technology in any way that would violate our proprietary rights.

B. Sell, license, modify, rent, copy, distribute, transmit, publicly perform, publish, edit, adapt, or create any derivative materials or works from the Content on our Website.

C.  Infringe upon any copyright, patent, trademark or other proprietary rights.

D. Use the Content in any way other than as expressly provided in the Terms.

E. In the case where you have linked any of our Content to a third party platform as permitted on our Website using any sharing capability, you agree to be bound by the Proprietary Rights as outlined in the Terms.  You further agree to provide the link back to our Website as provided on the sharing tools on our Website.

10.  Third Parties.  Our Website may allow access to or by third party applications or content, including websites, directories, servers, networks, systems, hyperlinks, information and databases, software, programs, products or services.  The existence of access to third party websites does not imply that we endorse or affiliate with such third parties, nor should such third party websites be considered part of our website.  You are solely responsible for your use of any such third party links or content, including any payment for your use, and agree not to hold Kelby & Co. responsible for your use in any way.

12. Disclaimer & Relationship. YOUR USE OF OUR WEBSITE IS AT YOUR SOLE RESPONSIBILITY AND RISK.  KELBY & CO. PROVIDES ITS WEBSITE AND ALL CONTENT AVAILABLE ON OUR WEBSITE, INCLUDING ALL PRODUCTS ADVERTISED  ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A  PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SECURITY.   KELBY & CO. DOES NOT IN ANY WAY WARRANT THAT OUR WEBSITE IS WILL FUNCTION WITHOUT INTERRUPTION OR THAT THE CONTENT WILL BE PROVIDED WITHOUT ERROR.

13.  Indemnification.    You agree to indemnify, defend, and hold harmless Kelby & Co., and its successors, subsidiaries, affiliates, co-branders, contractors, employees, third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys’ fees) arising out of or relating to your use of our Website.

14. Disclaimer of Warranty.  The Kelby & Co. Website, its content, and all text, images, products for sale, and related information on, or available through the site are provided on an “as available” and “as is” basis without warranty of any kind, either express or implied.  This includes, but is not limited to, implied warranties of merchantability, fitness for a particular purposes, title or non-infringement.  The Company specifically, but without limitation, disclaims any warranty that:

 

a.     The Information we make available is free of error;

b.     The functioning of the Website will be free of error;

c.     Defects will be corrected where there are errors; and

d.     The Website or programming on the Website are free of anything that may harm your computer when uses our Website.

 

15.  Limitation of Liability.  In no case shall Kelby & Co. its vendors, designers, or their officers, directors, employees, agents, successors, subsidiaries, affiliates or third parties who have submitted Content to our Website in any way have any obligations or any liability to any user of our Website, including any direct, indirect, special, incidental, punitive, consequential, or exemplary damages.  In no event shall the total liability of Kelby & Co. or its related parties exceed the amount you paid on our Website for items you have purchased.    In certain cases this Limitation on Liability may be limited by your state’s laws.

16.  Damages.  Kelby & Co., its officers, directors, members, employees, agents, partners, subsidiaries and related third parties will not be liable to you for any direct, indirect, incidental, special, consequential, or exemplary damages, which include but are not limited to, damages for the loss of profits, goodwill, use, data or intangible losses as a result of your use of our Website, or related services or purchase of products.

17. Copyright Infringement.  Kelby & Co. will respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (“DMCA“) by working to remove such materials.

18. Governing Law and Disputes.  This Agreement shall be governed by the laws of the State of New York, county of New York, without regard to conflict of law principles.  The United National Convention on the International Sale of Goods shall not apply to any Kelby & Co. Purchase Order or any transactions on our Website.  The parties agree that the Federal and State courts of New York shall have exclusive jurisdiction over any and all disputes arising under this Agreement.

19. Contact.  Please direct any correspondence in connection with these Terms or any issues relating to Content posted on our Website to hello@kelbyandco.com.

20.  Outside of the United States.  Certain other countries may have different rules pertaining to access to information which you are responsible for understanding before you access or use our Website.  If you are located in a country where software cannot be downloaded or otherwise ‘exported’ from the United States, you warrant to us that you are not located in nor under the control of such a territory.  Further, by using our Website you warrant and consent to having us access and transfer your personal data to the United States.

21.  Other.  Kelby & Co.’s failure to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision.  Should any provision of the Terms be found by a court of competent jurisdiction to be invalid, the parties agree that the intention of such provisions should be upheld nonetheless, and that the other provisions of the Terms shall remain in full force and effect.  All headings contained in our Terms are for the purpose of convenience and shall not affect the interpretation of the Terms.

22.  Entire Agreement.  The Terms, together with Kelby & Co.’s privacy policy and related policies posted on our Website shall together constitute our Agreement with you as a user of our Website and shall supersede any prior existing Agreement.