Furnishare Inc Furniture Purchase Agreement

Last Updated: May 31, 2023

1. This Agreement

   This Furnishare Inc Furniture Purchase Agreement (this “Agreement”) shall govern and apply in all respects to the purchase of the specific furniture items listed in your order receipt (each, an “Item”) by Furnishare Inc (d/b/a Kaiyo) (“Furnishare” or “we”) to the individual or entity that is the purchaser of each such Item (the “Customer” or “You”). Each of you and Furnishare are individually referred to herein as a “Party” and, collectively, as the “Parties.”

   This Agreement may be executed by your selecting the checkbox. By selecting the checkbox, you are signing this Agreement electronically. You agree that your electronic signature is the legal equivalent of your manual signature on this Agreement. By selecting the checkbox you consent to be legally bound by this Agreement’s terms and conditions. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, or to otherwise provide Furnishare instructions via the Site, or in accessing or making any transaction regarding any agreement, acknowledgement, consent terms, disclosures or conditions constitutes your signature (hereafter referred to as “E-Signature”), acceptance and agreement as if actually signed by you in writing. You also agree that no certification authority or other third party verification is necessary to validate your E-Signature and that the lack of such certification or third party verification will not in any way affect the enforceability of your E-Signature or any resulting contract between you and Furnishare.

   Modifications to this Agreement. This Agreement may be revised at any time for any reason, and we may provide you notice of these changes by any reasonable means, including by posting the revised version of the Agreement on the Site. You can determine when we last updated this Agreement by referring to the “Last Updated” legend at the top of this Agreement. By Using the Site following the posting of changes to this Agreement, you accept such changes. You agree to Use the Site for lawful purposes only in a manner consistent with all applicable laws and regulations. Any Use of the Site in a manner inconsistent with this Agreement is deemed unauthorized in all respects and may subject the user to civil or criminal penalties. We strongly recommend that you periodically visit this page of the Site to review this Agreement.

2. Your Use of the kaiyo.com Website

   This Agreement requires you to enter certain information and make certain selections in connection with this Agreement through the Site. Your use of the Site shall be governed by that certain kaiyo.com Website Terms of Use Agreement (“Terms of Use”), which are hereby incorporated into this Agreement. Each capitalized term used but not otherwise defined in this Agreement shall have the meaning ascribed to such term in the Terms of Use. In the event of a conflict between this Agreement and provisions elsewhere in the Terms of Use, this Agreement shall govern.

3. Fees and Credit Card Processing

   1. The purchase price of each Item and any other fees and charges to be paid in connection with that purchase (altogether, the “Fees”) are set out in your order receipt. In addition, certain additional fees and charges that may apply in certain circumstances (by way of example only, a late payment fee) are set forth within this Agreement.
   2. Unless the Parties agree otherwise in writing, all payments shall be made by Furnishare or a payment processor acting on Furnishare’s behalf charging your credit card or debit card (in each case, Your “Credit Card”). You agree that Furnishare or a payment processor acting on Furnishare’s behalf can automatically charge your Credit Card for any Fees and other charges payable by you under this Agreement. All amounts are in US Dollars only. You represent and warrant that all information you provide with regards to a purchase of Items, including Credit Card information, is accurate, current and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor, including, without limitation, any Credit Card you provide when completing a transaction. Should you cancel or revoke the payment method you have provided to us, you agree to promptly provide a valid replacement Credit Card to be charged in its place.
   3. Since your use of your Credit Card may be limited by your agreement with your financial institution and/or by applicable law, Furnishare is not liable to you if Furnishare does not complete a transaction as a result of any such limit, or if a financial institution fails to honor any credit or debit to or from an account. Furnishare’s payment processor may post operating rules related to payment on its site and change such rules from time to time. You should review the terms of use and privacy policy on the payment processor’s site before completing a purchase.
   4. Any amounts charged by Furnishare pursuant to this Agreement do not include any local, state, federal or other taxes, levies or duties of any nature (“Taxes“). You are responsible for paying all Taxes in connection with any purchase of an Item, excluding only Taxes based on Furnishare’s income. If Furnishare has the legal obligation to pay or collect Taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you unless you provide Furnishare with a valid tax exemption certificate authorized by the appropriate taxing authority.
   5. Amounts charged to you by Furnishare pursuant to this Agreement shall include any Credit Card banking or other payment processing fees that Furnishare incurs in processing your payments.
   6. The receipt or acceptance by Furnishare of any payment made by you hereunder shall not prevent Furnishare from subsequently challenging the validity or accuracy of such payment.
   7. Furnishare shall have the right to collect from you its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.

4. Furniture Delivery / Pickup

   1. You may choose to have an Item delivered to you on the date specified in your order receipt (the “Appointment Date”) or you may choose to come pick up an Item at one of our designated warehouses on the Appointment Date. If the customer chooses to have an Item delivered to them, Furnishare shall deliver an Item purchased pursuant to this Agreement to the delivery location specified in your order receipt on the Appointment Date. If the customer chooses to pick up an Item at one of our designated warehouses, Furnishare shall make an Item available for pickup on the Appointment Date.
   2. A delivery location must be within the service area set forth on the Site (the “White-Glove Service Area”) as of the day this Agreement is executed. If a delivery location is outside the White-Glove Service Area, this Agreement shall be voidable by Furnishare before such delivery by Furnishare providing written notice of the same to you. Delivery fees for sales outside the White-Glove Service Area are subject to change. Delivery fees will be estimated at checkout per the terms set forth on the Site but are subject to change depending on the delivery prices charged by third-party carriers. You will be asked to accept delivery prices higher than those shown at checkout before they are incurred and, if you do not accept an increased delivery price, Furnishare may void the contract and cancel the order.
   3. You may cancel or reschedule an Appointment Date at any time before 2:00 PM Eastern Time four (4) before the scheduled Appointment Date. For example, if you schedule an Appointment Date on a Thursday, in order to cancel that Appointment Date, you must notify Furnishare no later than 2:00 PM Eastern Time on Monday that the Appointment Date needs to be canceled.
   4. It is your responsibility to provide Furnishare with all material information relevant to the delivery or pickup of an Item, regardless of whether the questions on the Site specifically ask for that information. While Furnishare has done its best to ask for all of the information that is likely to be important about an item’s delivery or pickup, and if any important information about the delivery or pickup is not specifically requested by the Site, it is your responsibility to proactively, and in a timely, accurate and complete fashion, inform Furnishare of that information.
   5. If a scheduled delivery or pickup is not completed because of something you do or fail to do, you will still be charged all Delivery and/or Restocking Fees per item in relation to your appointment. For example, if you fail to cancel an appointment by 2:00 PM Eastern Time four (4) days prior to the scheduled Appointment Date, or if Furnishare is unable to deliver an Item because you did not accurately describe the delivery location or include all necessary delivery details when arranging for the delivery of an Item (such as failing to indicate that there is no elevator in the building when the delivery is to an upper floor), Furnishare would have the right to charge the Customer all item-based Delivery and/or Restocking Fees.
   6. When an Item is delivered or you arrive at one of Furnishare’s warehouses to pick up an Item, you shall have the right, provided you are present at the time of delivery or pickup, to inspect the Item and, if you determine that you do not want to complete the purchase of the Item, you can cancel the purchase and receive a full refund of the Fees minus the Delivery Fee (if delivery) or Restocking Fee (if pickup) per Item, as our services were provided. If you do not cancel the purchase of an Item at the time of delivery or pickup, the sale shall be final and all Fees and other charges paid in connection with such Item shall be nonrefundable. All orders are final once you accept an Item and Furnishare leaves your home (if delivery) or when you accept an Item and leave our warehouse (if pickup). Furnishare will not deliver an Item and you will not be able to pick up an Item at one of Furnishare’s warehouses until your payment of all Fees for such Item has been successfully processed and confirmed.

5. Breach of Agreement by You

   1. Any of the following shall be deemed an event of default under this Agreement (“Event of Default”):
      1. You breach this Agreement or otherwise fail to perform any of your obligations under this Agreement; or
      2. You are found to have made any misrepresentation or false statement to Furnishare in connection with this Agreement or otherwise in connection with the purchase of an Item.
   2. Upon the occurrence of an Event of Default under this Agreement, Furnishare shall have the right, in its sole discretion, to terminate this Agreement, to not deliver any Item or, if an Item has already been delivered, to demand the prompt return of any Item already delivered to you in the condition the Item was delivered in at your sole expense (and in such event, you shall be entirely responsible for any damages to, and Furnishare’s reasonable cost to repair or replace, such Item), and to take any other remedies available to it at law or in equity.

6. DISCLAIMERS AND LIMITATION OF LIABILITY

   FURNISHARE IS PROVIDING EACH ITEM THAT YOU PURCHASE ON AN “AS-IS” BASIS. YOU EXPRESSLY AGREE THAT YOUR PURCHASE OF AN ITEM IS AT YOUR SOLE RISK. FURNISHARE DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND TO THE EXTENT THAT THEY MAY BE EXCLUDED BY LAW, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURNISHARE DOES NOT WARRANT THAT THE AN ITEM WILL FUNCTION IN AN UNINTERRUPTED, DEFECT-FREE OR ERROR-FREE MANNER OR THAT ANY SUCH DEFECTS OR ERRORS WILL BE CORRECTED. FURNISHARE ASSUMES NO RESPONSIBILITY FOR AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, COMPLETENESS, RELIABILITY, CURRENTNESS, USEFULNESS, OR DECENCY OF ANY DESCRIPTION OF ANY ITEM. FURNISHARE DOES NOT WARRANT THAT AN ITEM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR PURCHASE OF, ACCESS TO AND USE OF AN ITEM. EXCEPT FOR LIABILITY ARISING FROM FURNISHARE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL FURNISHARE OR ITS SUBSIDIARIES OR AFFILIATES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR OTHER REPRESENTATIVES (“AFFILIATED ENTITIES”) BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR OTHER INTANGIBLES, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY OR CLAIMS OF THIRD PARTIES, EVEN IF FURNISHARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RESULTING FROM (1) THE QUALITY OF AN ITEM, INCLUDING THE PRESENCE OF ANY DAMAGE OR DEFECTS, (2) THE USE OF OR INABILITY TO USE AN ITEM OR ANY SERVICE THAT FURNISHARE MAY PROVIDE IN CONNECTION WITH AN ITEM OR OTHERWISE; (3) ANY TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE SITE; (4) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SITE; OR (5) ANY OTHER MATTER RELATING TO THE AN ITEM OR SERVICE THAT FURNISHARE MAY OFFER IN CONNECTION WITH AN ITEM, ANY TRANSACTION WITH YOU OR OTHERWISE. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. IN THE EVENT THAT DAMAGES ARE FINALLY AWARDED IN CONNECTION WITH THIS AGREEMENT BY A COURT OF COMPETENT JURISDICTION, EXCEPT FOR LIABILITY ARISING FROM FURNISHARE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE MAXIMUM AGGREGATE LIABILITY OF FURNISHARE AND THE AFFILIATED ENTITIES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE WILL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO FURNISHARE FOR THE ITEM IN RELATION TO WHICH SUCH LIABILITY AROSE. IF YOU ARE LOCATED IN A JURISDICTION, LIKE NEW JERSEY, WHOSE LAWS PREVENT YOU FROM TAKING FULL RESPONSIBILITY AND RISK FOR YOUR PURCHASE OF AN ITEM, ANY SERVICE PROVIDED IN CONNECTION WITH AN ITEM OR ANY TRANSACTION WITH FURNISHARE IN CONNECTION WITH AN ITEM, FURNISHARE’S LIABILITY IS LIMITED TO THE GREATEST EXTENT ALLOWED BY THE LAW OF THAT JURISDICTION. NO ACTION ARISING UNDER THIS AGREEMENT MAY BE BROUGHT AT ANY TIME MORE THAN TWELVE (12) MONTHS AFTER OCCURRENCE OF THE FACTS UPON WHICH THE CAUSE OF ACTION AROSE.

7. Indemnification

   You shall indemnify and defend Furnishare against, and hold Furnishare harmless from, any claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorney’s fees and costs, arising out of, connected with, or resulting from your use of an Item or resulting from any occurrence following Furnishare’s delivery of an Item to you or a warehouse pickup of an Item by you, including without limitation the purchase, possession, use or operation of an Item, except to the extent arising from Furnishare’s gross negligence or willful misconduct.

8. Your Covenants, Representations and Warranties

   You covenant, represent and warrant that:

   1. (i) You have the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; (ii) this Agreement is enforceable against you in accordance with its terms; (iii) no claims, liens or actions exist or are threatened that would interfere with your ability to fully perform under this Agreement and this Agreement is valid, legal and binding; and (iv) this Agreement does not violate and is not otherwise limited by any other agreement to which you are a party.
   2. You covenant, represent and warrant that any information you may provide to Furnishare through the Site or otherwise regarding you or otherwise, is accurate and complete and, to the extent applicable, will be provided in a timely manner.

9. Furnishare’s Covenants, Representations and Warranties

   Furnishare covenants, represents and warrants that: (i) Furnishare has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; (ii) this Agreement is enforceable against Furnishare in accordance with its terms; (iii) no claims, liens or actions exist or are threatened that would interfere with Furnishare’s ability to fully perform under this Agreement and this Agreement is valid, legal and binding; and (iv) this Agreement does not violate and is not otherwise limited by any other agreement to which Furnishare is a party.

10. Governing Law, Jurisdictions, Waiver of Trial By Jury

    This Agreement and the transactions it contemplates, including without limitation their interpretation, construction, performance and enforcement, shall be governed by the laws of the State of New York, U.S.A. without reference to any conflict or choice of law provisions, as applicable to contracts made and performed entirely within such State. The exclusive forum for the resolution of any dispute relating to this Agreement shall be the state and federal courts located in New York, NY and you agree to personal jurisdiction of such courts over you with regard to any dispute relating to this Agreement and you agree to service of process on you by e-mail or postal mail to your address as set forth in your order receipt, if any, and by any other means permitted by law. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

11. Notices.

    All notices, demands, or consents given by you under this Agreement will be in writing and will be deemed given when delivered to Furnishare at the following email address: [email protected]. Any notices to You may be made via either e-mail or postal mail to the email address or postal address set forth in your order receipt (which may be updated by you through the Site) or via positing on the Site. You must report any violations of this Agreement to Furnishare at the e-mail address listed above.

12. Miscellaneous

    You shall not assign this Agreement or any part of it to any third party without Furnishare’s prior written consent, and any attempt to do so by you shall be void and of no force or effect. Furnishare has the right to assign or delegate any of its rights and/or responsibilities under this Agreement to one or more affiliates and/or third parties. This Agreement may be amended only by a written agreement validly executed by authorized signatories of Parties. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of that provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Headings in this Agreement are for convenience only and shall have no legal meaning or effect. This Agreement, and not the conduct between Furnishare and you or any trade practice, shall control the interpretation of this Agreement as relates to the purchase of any Item. Furnishare’s failure to enforce a particular provision of this Agreement does not mean that Furnishare waives the right to enforce it in the future; Furnishare shall waive such a right, if at all, only in a writing executed by someone authorized to do so on behalf of Furnishare. This Agreement shall be binding upon and is for the benefit of the Parties, their heirs, executors, administrators, legal representatives, successors and assigns, subject to the provisions prohibiting assignment. The Parties acknowledge that they will not hold themselves out as an agent, partner or co-venturer of the other and that this Agreement is not intended and does not create an agency, partnership, joint venture or any other type of relationship except the contract relationships established hereby. This Agreement, together with the Terms of Use and any accompanying Schedules constitutes the entire agreement between Furnishare and you with respect to the subject matter hereof and supersedes any prior or contemporaneous proposals, discussions, communications, or oral or written agreements heretofore made.

13. Notice to Building Owner and Manager

    You hereby grant Furnishare the right to enter your apartment or office for purposes of delivering the Item(s) to you pursuant to this Agreement. You hereby authorize and request that family members, agents, employees, servants, landlord and building management fully cooperate with Furnishare’s delivery of an Item in your absence. You agree to hold such persons harmless for any action resulting from such entry. You hereby authorize Furnishare to present this Agreement (with this Section 13 included) as proof of your grant of permission to Furnishare.

14. How to Contact Us

    You may contact us regarding this Agreement at: 50 West 23rd Street, Suite 1400, New York, NY 10010 or by e-mail at [email protected].