Terms and Conditions
Last updated <11.25.2022>
In these Conditions the following words shall have the following meanings:
“Buyer” means the entity, organization or person who buys the Goods
“Goods” means the articles to be supplied to the Buyer by the Seller;
“Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
“KAMALETDOS or Seller” means KAMALETDOS LLC, 150 Broadway, Suite 90, New York, NY 10038, United States of America.
KAMALETDOS and Buyer may each be individually referred to herein as a “Party” and collectively as the “Parties.”
I. AGREEMENT TO TERMS.
Buyer acknowledges agreement to and acceptance of these Terms by accessing the Site and making a purchase, placing an order or otherwise shopping on the Site.
These Terms and Conditions shall apply to all sales of Goods by KAMALETDOS to Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by Buyer whether in
negotiation or at any stage in the dealings between the Parties, including any standard or printed terms tendered by Buyer, unless Buyer and KAMALETDOS have signed a written agreement which specifically modifies, supersedes and/or replaces these terms and conditions.
The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject KAMALETDOS to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
II. ELECTRONIC COMMUNICATIONS, TRANSACTIONS AND SIGNATURES.
Visiting the Site, sending emails, and completing online forms constitutes electronic communications.
Buyer consents to receive electronic communications, and agrees that all agreements, notices, disclosures, and other communications KAMALETDOS provides to Buyer electronically, via email and on the Site, satisfy any legal requirement that such communication be in writing.
BUYER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY KAMALETDOS OR VIA THE SITE.
Buyer hereby waives any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
III. USER REGISTRATION AND DATA.
3.01 User Data. Buyer may be required to register with the Site. Buyer agrees to keep its user password confidential and will be responsible for all use of its account and password. KAMALETDOS reserves the right to remove, reclaim, or change a username selected if, in KAMALETDOS's sole discretion, such username is inappropriate, obscene, or otherwise objectionable. Buyer further agrees to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that KAMALETDOS can complete Buyer's transactions and contact Buyer as needed.
3.02 Loss of Data. KAMALETDOS will maintain certain data that Buyer transmits to the Site for the purpose of managing the performance of the Site, as well as data relating to Buyer's use of the Site. Although KAMALETDOS performs regular routine backups of data, Buyer is solely responsible for all data that was transmitted or that relates to any activity undertaken using the Site. Buyer agrees that KAMALETDOS shall have no liability to Buyer for any loss or corruption of any such data, and Buyer hereby waives any right of action against KAMALETDOS arising from any such loss or corruption of such data.
IV. PRODUCTS AND ORDER PROCEDURE.
4.01 Product Description. Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For avoidance of doubt, Buyer hereby acknowledges that there is no reliance on any depiction, description or portrayal when entering into a purchase agreement for the Goods with KAMALETDOS.
4.02 Product Modification by KAMALETDOS. KAMALETDOS reserves the right to make technical or production related changes to the pictures, drawings, weights and dimensions stated on the Site and offers, provided that the Goods to be delivered are not thereby significantly altered and the change is reasonable to Buyer.
4.03 Product Display on the Site. KAMALETDOS makes every effort to display as accurately as possible the colors, features, specifications, and details of the products available on the Site. However, KAMALETDOS cannot guarantee that the colors, features, specifications, and details of the products will be accurate, complete, reliable, current, or free of other errors, and that Buyer's electronic display is capable to accurately reflect the actual colors and details of the products.]
4.04 Product Availability. All products are subject to availability and KAMALETDOS cannot guarantee that items will always be in stock. KAMALETDOS reserves the right to discontinue any products at any time for any reason.
4.05 Purchase Orders. By placing a Purchase Order online, Buyer makes an offer to purchase the Goods pursuant to these Terms and Conditions, and on no other terms. Any variations made to these Terms and Conditions by Buyer in any Purchase Order are void and have no effect. Each Purchase Order submitted by Buyer shall be considered binding and accepted by Buyer. To the extent not printed on invoices, these Terms and Conditions are the only ones upon which KAMALETDOS conducts business.
4.06 Return/Refund Policy. All sales are final and no refund will be issued.
4.07 Cancellation of Orders. KAMALETDOS will accept modifications or cancellations to a purchase order regarding standard products, under the conditions stated hereunder, only if such notice is given within twenty-four (24) hours of the confirmation of such order.KAMALETDOS will not accept any modifications or cancellations of purchase orders where Buyer requests same day shipping.
4.08 Order Cancellation and Modification Requests. All requests regarding modification or cancellation of orders shall be made by Buyer in writing and if not initially in writing, shall be confirmed in writing. No such modification or cancellation will become effective without the written consent of an authorized representative of KAMALETDOS. Such consent will be at KAMALETDOS’s sole discretion.
4.09 Order Cancellation Costs. If Buyer cancels an order, which has been accepted by KAMALETDOS, Buyer shall reimburse KAMALETDOS for any cost incident to such order incurred prior to the time KAMALETDOS was informed of the cancellation, including changes to price, surcharges and cancellations charges. If KAMALETDOS imports in the United States –upon Buyer’s specific demand– any particular Products that KAMALETDOS normally does not import, Buyer is obliged to purchase and collect/retrieve such ordered quantities of products at any status where the relevant order(s) might be in production, transit, stocked in KAMALETDOS’s warehouse or on delivery). Such Products shall be delivered and paid for on these Terms and Conditions agreed between the Parties.
V. SHIPMENT AND DELIVERY.
5.01 Shipment and Delivery. Unless expressly agreed to by the Parties in writing, KAMALETDOS shall select the method of shipment of, and the carrier for, the Goods to the Delivery Location. KAMALETDOS may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. If KAMALETDOS makes partial shipments of Goods to Buyer, Buyer shall pay for the Purchase Order either in advance or upon receipt of all Goods as identified in the Purchase Order.
5.02 Late Delivery. Any time quoted by KAMALETDOS for delivery is an estimate only. KAMALETDOS is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery. Except as provided in Section 16.09, unreasonable delay in the shipment or delivery of any Goods relieves Buyer of its obligations under these Terms and Conditions, including without limitation accepting delivery of any remaining installment(s) of Goods.
5.03 Title. Title to Goods ordered under any Individual Transaction passes to Buyer upon delivery of such Goods to the Delivery Location.
5.04 Risk of Loss. Risk of loss to all Goods ordered under any Purchase Order passes to Buyer upon Buyer’s receipt of such units at Delivery Location.
5.05 Packaging and Labeling. KAMALETDOS shall properly pack, mark, and ship Goods and provide Buyer with shipment documentation showing the Purchase Order number, the quantity of pieces in shipment, the number of cartons or containers in shipment, and KAMALETDOS’s name.
5.06 Inspection. Buyer shall inspect the Goods within five (5) Business Days of installation (“Inspection Period”) of the Goods and either accept or, if such Goods are Nonconforming Goods, reject such Goods. Buyer will be deemed to have accepted the Goods unless it notifies KAMALETDOS in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by KAMALETDOS. If Buyer timely notifies KAMALETDOS of any Nonconforming Goods, KAMALETDOS shall determine, in its reasonable discretion, whether the Goods are Nonconforming Goods. If KAMALETDOS determines that the Goods are Nonconforming Goods, it shall (i) replace such Nonconforming Goods with conforming Goods, or (ii) refund the Price for such Nonconforming Goods. Buyer shall ship, at Buyer’s expense and risk of loss, the Nonconforming Goods to KAMALETDOS’s facility as provided by KAMALETDOS. If KAMALETDOS exercises its option to replace Nonconforming Goods, KAMALETDOS shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at KAMALETDOS’s expense, the replaced Goods to the Delivery Location.
5.07 Placing in Service. If Buyer places the purchased Goods in service, Buyer acknowledges, by that act, that the Goods comply with Buyer’s specifications and are in good working order.
5.08 Limited Right of Return. Except as provided under Section 5.06 and Section 13.03, Buyer has no right to return Goods purchased under these Terms and Conditions to KAMALETDOS.
BUYER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN THIS SECTION 5.06 ARE BUYER’S EXCLUSIVE REMEDIES FOR THE DELIVERY OF NONCONFORMING GOODS, SUBJECT TO BUYER’S RIGHTS UNDER SECTION 13.03 WITH RESPECT TO ANY NONCONFORMING GOODS FOR WHICH BUYER HAS ACCEPTED DELIVERY UNDER THIS SECTION 5.06.
VI. MANUALS, DOCUMENTATION, TRAINING; ADDITIONAL DELIVERIES AND SERVICES.
6.01 Manuals, Bulletins, and Documentation.
(a) The following materials shall be provided at no charge to Buyer: (i) 1 complete set of operator/ user manuals and any other printed media available for user education, and the operator/user manual will include troubleshooting guides and preventative maintenance procedures; (ii) parts lists, pricing lists or schedules, as applicable; and (iii) installation procedures and/or special test tools and/or components related to installation. Buyer shall be notified of installation requirements before the Goods are shipped.
(b) KAMALETDOS shall, on a timely basis, forward to Buyer: (i) any service bulletins, user bulletins, or similar type of or related bulletin including, but not limited to, on-line technical resources that relate to the Goods; and (ii) updates to the manuals/materials referred to in this provision; provided that the Goods is still being used or Buyer still requires the Goods, at no additional cost to Buyer.
(c) Buyer shall, on a timely basis, notify KAMALETDOS in writing of the following: (i) any serious regulatory action relating to the Goods; (ii) any material complaints regarding the Goods or their related ongoing operation; or (iii) any incidents with aforesaid Goods that may have been reported by Buyer's end users.
6.02 Training. Training may be provided directly by KAMALETDOS’s personnel and/or any third party retained by KAMALETDOS to provide such training. The cost of all of the training, including travel and accommodation for Buyer’s personnel to attend such training course(s) at KAMALETDOS’s facilities, if necessary, shall be borne by Buyer. After the training has been completed, Buyer reserves the right to request, at Buyer’s expense, additional follow-up training as reasonably required, and technical and consultative support which shall include support for and assistance with the resolution of any problem or difficulty with the operations of the Goods.
6.03 Service Support/Replacement Parts.
(a) KAMALETDOS shall: (i) ensure that full service support and parts are available for a period of five (5) years following the last date of production of the Goods and its accessories; (ii) provide full access to technical support, provided that the Goods remain in use by Buyer; and (iii) without limiting the generality of clause (i) above, provide Buyer with a one (1) year written notification prior to replacement parts no longer being available.
(b) KAMALETDOS shall deliver satisfactory new replacement parts within five (5) Business Days from the time of order placement, or if requested by Buyer, KAMALETDOS shall deliver rush-order replacement parts within two (2) Business Days.
(c) KAMALETDOS shall supply and deliver spare parts to Buyer, at KAMALETDOS’s own expense, where Buyer makes a request for such spare parts within the Warranty Period as provided in these Terms and Conditions. The cost of parts outside such Warranty Period shall be at KAMALETDOS’s list price, and the cost of any part and labor outside such Warranty Period shall be invoiced through a new Purchase Order. Buyer shall not be entitled to use for, or attach spare parts to, the Goods, if not obtained from KAMALETDOS; any such use or attachment of such spare parts shall invalidate the warranties set out in these Terms and Conditions or any other warranty provided by KAMALETDOS.
VII. PRICE AND PAYMENT.
7.01 Price. Buyer can purchase the Goods from KAMALETDOS at the applicable prices set forth on the Site or KAMALETDOS's price list(s) (“Prices”), less any negotiated discounts otherwise agreed in writing between the parties. All prices for the Goods are net delivery, insurance costs and any sales tax. Prices for all products listed are subject to change from time to time.
7.02 Shipping Charges and Taxes. Buyer shall pay for, and shall hold KAMALETDOS harmless from, all shipping charges. In addition, all Prices are exclusive of, and Buyer is solely responsible for, and shall pay, and shall hold KAMALETDOS harmless from, all taxes.
7.03 Payment Terms. KAMALETDOS shall issue an invoice for each Individual Transaction entered into. Buyer shall pay all invoiced amounts due to KAMALETDOS either in advance or upon delivery of the Goods. Buyer shall make all payments in US dollars by credit card, wire transfer or check.
7.04 Invoice Disputes. Buyer shall notify KAMALETDOS in writing of any dispute with any invoice (along with a reasonably detailed description of the dispute) within five (5) Business Days from the date of delivery of the Goods. Buyer will be deemed to have accepted all invoices for which KAMALETDOS does not receive timely notification of disputes, and shall pay all undisputed amounts due under such invoices within the period set forth in Section 7.03. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Buyer shall continue performing its obligations under these Terms and Conditions during any such dispute, including, without limitation, Buyer’s obligation to pay all due and undisputed invoice amounts.
7.05 Late Payments. Except for invoiced payments that Buyer has successfully disputed, Buyer shall pay interest on all late payments, at the lesser of the annual interest rate of eight percent (8%) or the highest rate permissible under applicable Law. In addition to all other remedies available under these Terms and Conditions or at Law (which KAMALETDOS does not waive by the exercise of any rights under these Terms and Conditions), if Buyer fails to pay any amounts when due under these Terms and Conditions, KAMALETDOS may (a) suspend the delivery of any Goods, (b) reject Buyer’s Purchase Orders, (c) cancel accepted Purchase Orders or (d) terminate Buyer's account pursuant to the terms of Section 10.02.
VIII. COMPLIANCE WITH LAWS.
8.01 General Compliance With Laws. Buyer shall at all times comply with these Terms and Conditions, Buyer’s performance of its obligations hereunder and Buyer’s use or sale of the Goods.
8.02. Ordinary Use. Buyer promises to operate the Equipment only in the normal and ordinary course of Buyer’s business, and not in violation of any law, rule, regulation, statute or ordinance. Buyer promises to indemnify and hold KAMALETDOS harmless from and against all fines, forfeitures,
seizures, confiscations and penalties arising out of any violations.
8.03. Permits. Buyer shall obtain all permits and licenses necessary for the installation, operation, possession and use of the Goods. Buyer shall comply with all laws, rules, regulations and other governmental directives applicable to the installation, use and operation of the Goods and, if compliance with such law, rule, regulation or other governmental directive requires changes or additions to be made to the Equipment, such changes or additions shall be made by Buyer at Buyer’s sole cost and expense.
IX. INTELLECTUAL PROPERTY RIGHTS.
9.01 Ownership. Buyer acknowledges and agrees that:
(a) any and all KAMALETDOS’s Intellectual Property Rights are the sole and exclusive property of KAMALETDOS or its licensors;
(b) Buyer shall not acquire any ownership interest in any of KAMALETDOS’s Intellectual Property Rights;
(c) any goodwill derived from the use by Buyer of KAMALETDOS’s Intellectual Property Rights inures to the benefit of KAMALETDOS or its licensors, as the case may be; and
(d) if Buyer acquires any Intellectual Property Rights, rights in or relating to any Goods (including any rights in any Trademarks, derivative works, or patent improvements relating thereto) by operation of Law, or otherwise, such rights are deemed and are hereby irrevocably assigned to KAMALETDOS or its licensors, as the case may be, without further action by either of the Parties; and
(e) Buyer shall use KAMALETDOS’s Intellectual Property Rights solely for purposes of using the Goods and only in accordance with these Terms and Conditions and the instructions of KAMALETDOS.
9.02 Prohibited Acts. Buyer shall not:
(a) take any action that might interfere with any of KAMALETDOS’s rights in or to KAMALETDOS’s Intellectual Property Rights, including KAMALETDOS’s ownership or exercise thereof;
(b) challenge any right, title, or interest of KAMALETDOS in or to KAMALETDOS’s Intellectual Property Rights;
(c) make any claim or take any action adverse to KAMALETDOS’s ownership of KAMALETDOS’s Intellectual Property Rights;
(d) register or apply for registrations, anywhere in the world, for KAMALETDOS’s Trademarks or any other Trademark that is similar to KAMALETDOS’s Trademarks or that incorporates KAMALETDOS’s Trademarks in whole or in confusingly similar part;
(e) use any mark, anywhere that is confusingly similar to KAMALETDOS’s Trademarks in whole or in confusingly similar part;
(f) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any KAMALETDOS’s Trademarks;
(g) misappropriate any of KAMALETDOS’s Trademarks for use as a domain name without prior written consent from KAMALETDOS; or
(h) alter, obscure or remove any KAMALETDOS’s Trademarks, or Trademark or copyright notices or any other proprietary rights notices placed on the Goods, marketing materials or other materials that KAMALETDOS may provide.
X. REFUSAL OF ORDERS AND ACCOUNT TERMINATION.
10.01 Suspicious Orders. KAMALETDOS may refuse any order placed through the Site. KAMALETDOS may, in its sole discretion, limit or cancel quantities purchased per person, per customer entity, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. KAMALETDOS reserves the right to limit or prohibit orders that, in its sole judgment, appear to be placed by dealers, resellers, or distributors.
10.02 Termination of Buyer's Account. KAMALETDOS may terminate a particular Buyer's account:
(a) if Buyer fails to pay any amount when due under these Terms and Conditions (“Payment Failure”) and such failure continues for ten (10) days after Buyer’s receipt of written notice of non-payment;
(b) if within any twelve (12) month period, two (2) or more Payment Failures occur;
(c) if Buyer breaches any material provision of these Terms and Conditions or any Individual Transaction (other than a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by Buyer within thirty (30) days after Buyer’s receipt of written notice of such breach; or
(d) if Buyer (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
11.01 Scope of Confidential Information. From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, goods and services, Forecasts, confidential information and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence:
(a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Article XI by the Receiving Party or any of its Representatives;
(b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
(c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party;
(d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or
(e) is required to be disclosed pursuant to applicable Law, including but not limited to the disclosure requirements under the Securities Act of 1933, as amended or the Securities Exchange Act of 1934, as amended, or the rules of any stock exchange.
(f) is contained in or is a part of any manual, bulletin, or documentation set forth in section 6.02.
11.02 Protection of Confidential Information. The Receiving Party shall, during the Term and for three (3) years from the date of the last Purchase Order:
(a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
(b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations and;
(c) not disclose any such Confidential Information to any Person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations.
The Receiving Party shall be responsible for any breach of this Article XI caused by any of its Representatives. At any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall, pursuant to Section 10.02, promptly return all Confidential Information and copies thereof that it has received under these Terms and Conditions. This Article XI shall survive the expiration or termination of of the business relationship between Buyer and KAMALETDOS.
XII. REPRESENTATIONS AND WARRANTIES.
12.01 Buyer’s Representations and Warranties. Buyer represents and warrants by using the Site to KAMALETDOS that:
(a) all registration information submitted is true, accurate, current, and complete;
(b) Buyer will maintain the accuracy of such information and promptly update such registration information as necessary;
(d) is not under the age of 18;
(e) is not a minor in the jurisdiction in which Buyer resides;
(f) Buyer will not access the Site through automated or non-human means, whether through a bot, script or otherwise;
(g) Buyer will not use the Site for any illegal or unauthorized purpose;
(h) Buyer's use of the Site will not violate any applicable law or regulation.
If Buyer provides any information that is untrue, inaccurate, not current, or incomplete, KAMALETDOS reserves the right to suspend or terminate Buyer's account and refuse any and all current or future use of the Site (or any portion thereof).
12.02 KAMALETDOS’s Representations and Warranties. KAMALETDOS represents and warrants to Buyer that:
(a) KAMALETDOS LLC is a Limited Liability Company duly organized, validly existing and in good standing in New York;
(b) has the full right, power and authority to enter into this contract and to grant Buyer the aforesaid rights and licenses;
(c) is in compliance with all applicable Laws relating to the Goods and the operation of its business (except that KAMALETDOS does not represent or warrant as to any Law relating to antitrust or anticompetitive behavior or business practices);
(d) as of the date hereof, it is not insolvent and has met its obligations in the ordinary course of business; and
(e) all financial information that it has provided to Buyer is true and accurate in all material respects and fairly represents KAMALETDOS’s financial condition.
XIII. PRODUCT WARRANTIES.
13.01 Limited Warranty. KAMALETDOS warrants to Buyer that:
(a) no Goods will be Nonconforming Goods.
(b) for a period of twelve (12) months from the date of shipment of the Goods (the “Warranty Period”), that such Goods will conform to the Specifications and will be free from significant defects in material and workmanship; and
(c) Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens of any kind. Neither the Goods nor Buyer’s use of them including, but not limited to Intellectual Property Rights, infringe upon any trade secret, patent, trademark, copyright or other intellectual property or proprietary right of any third party.
(d) As of the date of shipment by KAMALETDOS, the Goods are in accordance with the specifications and indications described in the labeling, and have been properly manufactured, processed and labeled.
13.02 Warranty Limitations. The warranties under Section 13.01 (b) and the second sentence of Section 13.01(c) do not apply where the Goods are Defective Goods as a result of having:
(a) been subjected to abuse, misuse, neglect, negligence, improper testing, improper installation (but only if installation was not by KAMALETDOS or its authorized Representative), improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by KAMALETDOS;
(b) been reconstructed, repaired or altered by Persons other than KAMALETDOS or its authorized Representative; or
(c) been used with any Third-Party Product, hardware or product that has not been previously approved in writing by KAMALETDOS.
13.03 Buyer’s Exclusive Remedy for Defective Goods. Notwithstanding any other provision of these Terms and Conditions, this Section 13.03 contains Buyer’s sole and exclusive remedy and warranty for Defective Goods. Buyer’s remedy under this Section 13.03 is conditioned upon Buyer’s compliance with its obligations under Section 13.03(a) and Section 13.03(b) below. During the Warranty Period, with respect to any allegedly Defective Goods:
(a) Buyer shall notify KAMALETDOS, in writing, of any alleged claim or defect within a reasonable amount of time from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable Warranty Period);
(b) Buyer shall ship, such allegedly Defective Goods to KAMALETDOS’s facility located at the address set forth in Section 16.02 below for inspection and testing by KAMALETDOS;
(c) If KAMALETDOS’s inspection and testing reveals that such Goods are Defective and any such defect has not been caused or contributed to by any of the factors described under Section 13.02, KAMALETDOS shall, at its expense (subject to Section 13.03(b) and Section 13.03(d)), (i) repair or replace such Defective Goods within a reasonable amount of time, or (ii) credit or refund the Price of such Defective Goods less any applicable discounts, rebates or credits within a reasonable amount of time;
(d) KAMALETDOS shall, after receiving Buyer’s shipment of such Defective Goods pursuant to Section 13.03(c)(1) above, ship to Buyer, at KAMALETDOS’s expense, the repaired or replaced Goods.
Buyer has no right to return for repair, replacement, credit, or refund any Goods except as set forth in this Section 13.03 (or if otherwise applicable, Section 5.06). In no event shall Buyer reconstruct, alter, or replace any Goods, in whole or in part, either itself or by or through any third party.
13.04 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 13.01, KAMALETDOS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY;
(B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR
(C) WARRANTY OF TITLE;
WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY KAMALETDOS, OR ANY OTHER PERSON ON KAMALETDOS’S BEHALF.
XIV. LIMITATION OF KAMALETDOS’S LIABILITY.
14.01 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT, LIABILITY FOR BREACH OF CONFIDENTIALITY, LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, OR LIABILITY FOR THE BREACH OF ANY REPRESENTATIONS OR WARRANTIES IN ARTICLE XII, NEITHER PARTY NOR ITS REPRESENTATIVES IS LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, REGARDLESS OF
(A) WHETHER SUCH DAMAGES WERE FORESEEABLE,
(B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
(C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE)
UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.02 MAXIMUM LIABILITY. EXCEPT FOR LIABILITIES ARISING FROM CLAIMS BROUGHT OR THREATENED AGAINST BUYER OR ITS AFFILIATES BY THIRD-PARTIES WITH RESPECT TO THE GOODS, KAMALETDOS’S AGGREGATE LIABILITY TO BUYER SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO KAMALETDOS BY BUYER.
14.03 ASSUMPTION OF RISK. SUBJECT TO THE EXPRESS COVENANTS AND LIMITATIONS, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY KAMALETDOS, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE GOODS.
XV. INDEMNIFICATION OBLIGATIONS.
15.01 Indemnification. Subject to Article XIV, each Party (as such, the “Indemnifying Party”) agrees to defend, indemnify and hold harmless the other Party and its shareholders, affiliates, officers, directors, employees, and agents for, from and against any claim, loss, liability, cost and expense (including, without limitation, costs of investigation and reasonable attorney’s fees), directly or indirectly relating to, resulting from or arising out of any breach of a representation, warranty or covenant or any action or failure to act by the Indemnifying Party or its shareholders, Affiliates, Representatives, officers, directors, employees, and agents.
16.01 Entire Agreement. These Terms and Conditions and any policies or operating rules posted by KAMALETDOS on the Site or in respect to the Site constitute the entire agreement and understanding between Buyer and KAMALETDOS.
16.02 Notices. All notices, requests, consents, approvals, waivers and other communications hereunder shall be deemed to have been duly given and made if in writing, and
(i) if served by personal delivery upon the party for whom it is intended,
(ii) if delivered by registered or certified mail, return receipt requested, or by a courier service, or
(iii) if sent by e-mail or facsimile to the address set forth below, or
such other address as may be designated in writing hereafter, in the same manner and shall be effectiveupon receipt:
If to KAMALETDOS:
150 Broadway, Suite 90
New York, NY 10038
Phone: (646) 328-6373
If to Buyer:
The address and contact details stored in Buyer's user account on Site.
16.03 Severability. If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
16.04 Amendment and Modification. No amendment to or modification of or rescission, termination, or discharge of these Terms and Conditions is effective unless published on the Site by KAMALETDOS.
16.05 Waiver. The failure by either party to enforce for any time or any period of time any, all or certain of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce and require compliance with the Terms and Conditions.
16.06 Assignment. Neither Party shall assign its rights and/or obligations under these Terms and Conditions, without the prior written consent of the other Party hereto.
16.07 Choice of Law. Enforcement and interpretation of the provisions hereof shall be governed by and construed in accordance with the Laws of New York, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the Laws of any other jurisdiction.
16.08 WAIVER OF JURY TRIAL. THE PARTIES HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING FROM OR RELATED TO THESE TERMS AND CONDITIONS, THE GOODS, OR ANY DEALINGS BETWEEN THE PARTIES, ARISING FROM OR RELATED TO ANY OF THE FOREGOING.
16.09 Force Majeure. KAMALETDOS shall not be responsible for any delays or failure to perform any obligation under these Terms and Conditions due to acts of God, strikes or other disturbances, including, without limitation, war, insurrection, embargoes, governmental restrictions, acts of governments or governmental authorities, and any other cause beyond KAMALETDOS's control.
16.10 Relationship of Parties. Nothing in these Terms and Conditions creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Buyer is an independent contractor. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.