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.
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.
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.
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.
You covenant, represent and warrant that:
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.
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.
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.
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.
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.
You may contact us regarding this Agreement at: 50 West 23rd Street, Suite 1400, New York, NY 10010, by phone at +1 (646) 844-8585 or by e-mail at [email protected].