These terms and conditions (“Terms”) govern and apply to your ordering and purchase of merchandise and apparel (the “Products”) from KINETICS 7, INC. (“we”, “us” or the “Company”), either by mail, telephone or through the k7-pro.com website. By placing an order of products the (“Purchase Order”), you (“you” or “Buyer”) agree that the Purchase Order is subject to the terms and conditions set forth below. These terms and conditions are fully integrated in the Purchase Order and supersede any other terms and conditions and/or all prior representations, if any, between you and the Company.
The placement of a Purchase Order for the production and shipment of Products constitutes acceptance by you of the terms and conditions set forth below. Any shipment of Products by Company shall be deemed to be only on the terms and conditions contained herein, except to the extent that an authorized representative of Company may otherwise expressly consent to in writing.
The Company is committed to the appropriate and legal use of the intellectual property of others, as well as the protection of its own intellectual property, including but not limited to text, logos or design elements, including color links, patterns, photographs, prints, images, illustration, icons, color combinations, visual effects, banners, flags, team and company logos and graphics (collectively, the “Design Elements”).
You represent and warrant to the Company that you have all rights, title and interest, including the right to publish and commercially exploit, any and all Design Elements that you may transmit to Company in connection with the placement of an Order for custom Products. You are solely responsible for ensuring that any and all Design Elements do not infringe or otherwise violate any third party rights. To the extent that any such Design Elements are subject to any trademark, servicemark, trade dress or other intellectual property rights (the “Customer IP”), you agree to grant the Company a limited license to use such Customer IP to manufacture and display the Products in connection with the Company’s commercial activities (the “Licensed Customer IP”).
Except for Licensed Customer IP, all Design Elements displayed on www.kinetics7.com (the “Company IP”) belong to the Company and may not be used or displayed by anyone except with the prior written consent of the Company.
To the extent that you will use any Company IP for the purpose of designing your Products, or that any Design Element owned or created by the Company and displayed on kinetics7.com will be displayed on Products for which you place a Purchase Order, you agree to the following additional terms:
The Company has the right, in its sole discretion, to reject any Purchase order or the use of any Customer IP on any Products that the Company considers in violation of these Terms or libelous, defamatory, obscene, profane (according to standards established by the FCC), portraying irresponsible use of alcohol or other substances, advocating persecution based on gender, age, race, disability or national origin, containing explicit sexual content or is otherwise inappropriate for production.
Pursuant to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright, trademark, or other intellectual property right is being infringed by a user of the Company please provide written notice to the following agent for notice of claims of infringement:
Kevin L. Dellinger
KINETICS 7, INC.
24654 N Lake Pleasant Pkwy #103-117
Tel: +1 (877) 77-K7PRO
Fax: +1 (877) 77-K7PRO
In order for us to respond to your notice, it must: (i) contain your physical or electronic signature; (ii) identify the copyrighted work, trademark, or other intellectual property alleged to have been infringed; (iii) identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material; (iv) contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address); (v) contain a statement that you have a good faith belief that use of the copyrighted material, trademark, or other intellectual property is not authorized by the owner, the owner’s agent, or the law; (vi) contain a statement that the information in the written notice is accurate; and (vii) contain a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright, trademark, or other intellectual property right owner.
Prices are as specified by Company and may vary from time to time. Products will be sold at the price included in the Company’s current price list at the date of acceptance; the Company reserves the right to charge additionally for Products or Services not appearing in the Company’s standard price list; and prices so stated apply only to the quantity of each item on each order for delivery to any one place at any one time.
Except as otherwise displayed on kinetics7.com, prices are exclusive of taxes, impositions and other changes, including sales, use, excise, value added and similar taxes or charges imposed by any government authority, international shipping charges, forwarding agent’s and brokers’ fees, consular fees, document fees, and import duties.
Company shall use reasonable efforts to initiate shipment and schedule delivery as close as possible. You acknowledge that any delivery dates provided by Company are estimates only and that Company is not liable for failure to deliver on such dates. Delivery of a quantity which varies from the quantity specified shall not relieve you from the obligation to accept delivery and pay for the Products delivered. Delay in the delivery of one installment shall not entitle you to cancel other installments. Deliveries may be wholly or partially suspended, and the time of such suspension added to the original delivery date in the event of a work stoppage, delay or interruption of work as a result of force majeure events, such as strikes, lockouts, trade disputes, breakdown, accident or any cause whatsoever beyond our control. In the event of such an occurrence, the Company shall be entitled to make partial delivery only, and/or to terminate the remaining order without prejudice in any such case to rights accrued in respect of deliveries already made.
All items purchased from KINETICS 7 and its subsidiary companies are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier.
Under no circumstances shall any Products be returned to Company nor orders canceled nor deliveries suspended by you without the Company’s prior written consent. Such consent will be granted at the sole discretion of the Company, and on terms which will indemnify the Company against all loss thereby suffered. All Products for return shall be returned freight prepaid in the manner specified by the Company. If Products are claimed to be defective, a complete description of the nature of the defect must be provided to the Company immediately upon receipt of Products. Claims for shortage or for Products damaged during shipment must be filed with the freight carrier by you immediately upon receipt of the Products. If you return Products for whatever reason without the Company’s prior written consent, Products shall be returned to you, freight collect. No deductions from invoices for claims against the carrier will be allowed.
THE COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND WITH RESPECT TO APPLICATIONS OF A PRODUCT. IN PARTICULAR, THE COMPANY MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR RESPECTING INFRINGEMENT. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO COMPANY’S PRODUCTS OR SERVICES OR BOTH. THE TOTAL LIABILITY OF THE COMPANY ON ANY CLAIM SHALL NOT IN ANY EVENT EXCEED THE PRICE PAID TO THE COMPANY FOR THE PRODUCTS OR SERVICES THAT ARE THE SUBJECT OF SUCH CLAIM. YOU ASSUME ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS OR SERVICES DELIVERED HEREUNDER.
You shall indemnify the Company and its officers, directors, agents, employees and consultants against all liability, loss, damage, costs and expenses whatsoever arising out of or relating to any breach by you of these Terms or from your negligence or intentional acts.
These Terms constitute the entire agreement between you and the Company and there are no understandings, representations or warranties of any kind, express or implied, not expressly set forth herein. No modification of these Terms and conditions shall be of any force or effect unless such modification is in writing and signed by both the Company and you. No modification shall be effected by the acknowledgment or acceptance of purchase order forms provided by you containing terms or conditions varying from those set forth herein.
The Company’s waiver of any breach, or failure to enforce any of the Terms set forth herein at any time shall not in any way affect, limit or waive the Company’s right thereafter to enforce and compel strict compliance with every term and condition hereof. The acceptance by the Company of any payment after the specified due date shall not constitute a waiver of your obligation to make further payments on the specified dates.
These Terms are governed by and construed in accordance with the laws of the State of Arizona. Any action brought to enforce these Terms or matters related thereto may be brought only in either the State or Federal Courts of the State of Arizona, Maricopa County; provided, however, that Company shall have the right to institute judicial proceedings in any jurisdiction against you or anyone acting by, through or under you, in order to enforce Company’s rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief. Unless any claim or cause of action you have with respect to Products and/or Services provided by the Company to you is commenced within one (1) year after the date of the event giving rise to the claim, the Company will be discharged of all liability whatsoever howsoever arising.
If any provision of these Terms is deemed void, unlawful, or otherwise unenforceable for any reason, that provision will be severed and the remaining provisions of the terms and conditions will remain in force.
In the event of a dispute the prevailing party shall be entitled to reasonable attorneys’ fees and costs.