Tom Mboya Archives - Kendi Art

Tom Mboya

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© 2019 Kendi Art Limited

KENDI ART TERMS OF SERVICE

Welcome to Kendi Art online marketplace!

Thank you for accessing and using Kendi Art online marketplace (marketplace) to shop for works or art (the “Services”). The Services are provided by Kendi Art Limited (“Kendi Art”), of postal address number 51923 – 00200 Nairobi and located at [add address – both postal and physical] Kenya.

By creating an Account to access and use our Services, you are agreeing to these terms. Please read them carefully.

Our Services are very diverse, so sometimes additional terms or product requirements (including registration requirements) may apply. Additional terms will be available with the relevant Services, and those additional terms become part of your agreement with us if you use those Services.

The marketplace

Our platform enables: -
1. Owners of works of art, to display, market and offer for sale to a diverse art clientele. When a sale has been made, to deliver the work of art globally, and to receive payment.
2. Buyers of works of art, to shop for diverse works of art in a centralized market at the click of a button, to view and review the displayed works of art, to order works available for sale, to pay through a convenient mode of payment and receive delivery for works bought in the market.

Although we make reasonable efforts to update or have updated the information on the marketplace, Kendi Art makes no representations, warranties, or guarantees that the content on the marketplace is accurate, complete, or up-to-date.

We have made all reasonable efforts to collaborate with the best third-party service providers to make our end-to-end marketplace user experience blissful and memorable. Kendi Art, however does not guarantee a fault/disappointment free service, and accepts no liability for loss suffered.

We do not guarantee that the marketplace, or any content thereon, will always be available or be uninterrupted. Access to the marketplace is permitted on a availability basis. Kendi Art may suspend, withdraw, discontinue, or change all or any part of the marketplace without notice. Kendi Art will not be liable to you if for any reason the marketplace is unavailable at any time or for any period.

Our Products

You acknowledge that the pieces of art displayed on our marketplace are not owned or created by us but by third party supplier.

The images of the pieces or art are for illustrative purposes only as provided by third party suppliers. Although we have made every effort to have the pieces of art displayed accurately (including the colours), we cannot guarantee the image fully reflects the piece of art and as such, the piece of art you order may vary slightly from those images.

The measurements and the weight of the pieces of art are provided by the third party suppliers. We have made every effort to have the measurements and weight displayed alongside the image of the piece of art as accurate as possible. We cannot guarantee that the piece of art corresponds to the dimensions or the weight provided

We specifically disclaim the weight indicated alongside the piece of art since it could vary due to packaging for purposes of delivery.

Price and Payment

Prices of piece(s) of art (which may or may not be inclusive of applicable taxes) will be indicated on the order pages when you place your order.

You have sole responsibility for all legal and regulatory obligations including tax obligations arising from placing an order for a piece of art on our marketplace.

We accept payment for the piece(s) of art by way VISA, MasterCard, Discover Card, M-PESA, or any other designated mode of payment indicated on our website.

The terms and conditions provided for the mode of payment you opt to use shall be incorporated as additional to these terms and conditions.

Order and Delivery

You shall order and pay for the pieces of art using the procedure specified on our website checkout.

The costs of delivery will be as displayed to you while you checkout.

During the order process we will let you know when we will provide the piece(s) of art to you. If the piece(s) of art, we will also tell you during the order process when and how you can end the contract.

You acknowledge that we contract third party providers of delivery services. We are not responsible for delays outside our control. If the supply of the piece(s) of art is delayed by the supplier, courier or an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay.

If no one is available at your address or any other address provided by you to take delivery we will notify you of how to rearrange for delivery.

If, after a failed delivery to you, you do not re-arrange delivery we will contact you for further instructions and may charge you for storage costs and any further delivery costs. If, despite our reasonable efforts, we are unable to contact you or re-arrange delivery or collection we may terminate the contract in accordance these terms.

If you do not allow us to access your property to deliver the piece(s) of art or otherwise perform the services as arranged (and you do not have a good reason for this) we may charge you additional costs incurred by us as a result. If, despite our reasonable efforts, we are unable to contact you or re-arrange access to your property we will terminate the contract in accordance with these terms.

We may need certain information from you so that we can supply the piece(s) of art to you. If so, we will contact you to ask for this information. If you do not give us this information within a reasonable time of us asking for it, or if you give us incomplete or incorrect information, we may terminate the contract or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for supplying the piece(s) of art late or not supplying any part of them caused by you not giving us the information we need within a reasonable time of us asking for it.

Title and Risk

You shall take up any risk of any damage or loss to piece(s) of art from the time we deliver the piece(s) of art to the address provided by you.

You are responsible for piece(s) of art from the date we deliver it/them to you and if necessary you should take out insurance for it/them.

You shall own piece(s) of art only after we have received full payment for it.

Suspension of Supply

We have the right to suspend the supply of piece(s) of art for any reason whatsoever including in order to; (a)deal with technical problems relating to the piece(s) of art or make minor technical changes; or (b) update the piece(s) of art to reflect changes in any relevant laws and regulatory requirements.

We will contact you in advance on the contact information provided by you to notify you if we intend to suspend the supply of piece(s) of art.

User Warranties

You hereby represent and warrant (which representations and warranties shall be deemed to be repeated by you on each time you access or use the marketplace) that: -
the information you have provided in your account opening form or otherwise under these terms of service is current, accurate, truthful and complete;
you have full power ,authority and capacity to execute and deliver this terms or service, each transaction and any other documentation relating thereto, and to perform your obligations under this contract and have taken all necessary action to authorize such execution, delivery and performance;
you shall be fully and directly responsible to us for all of the liabilities and obligations incurred by us under this contract;
any execution, delivery and performance of a transaction shall not violate or conflict with any law applicable to you, your constitutional documents (for organisations) or any charge, trust deed, contract or other instrument or any contractual restrictions applicable to, binding on or affecting you or any of your assets or oblige you to create any lien, security interest or encumbrance;
all governmental, regulatory and other consents that are required to have been obtained by you in relation to this contract have been so obtained and are in full force and effect and all conditions of any such consents have been complied with;
you shall comply with all laws, rules, regulations and disclosure requirements of any relevant jurisdiction or regulatory authority which apply in respect of us or you from time to time;
you shall promptly give (or procure to be given) to us such information and assistance as we may reasonably require from you to enable us to perform this contract;
you have been and are compliant with all tax and reporting obligations relating to this contract; and
if you are a corporate entity, no order has been made or resolution passed or petition presented for your winding up or for a provisional liquidator to be appointed in respect of you and no meeting has been convened for the purpose of your winding-up and no receiver has been appointed in respect of you or of all or any of your assets;

Termination of Contract

We may end the contract for piece(s) of art at any time by writing to you for any reason whatsoever including if:
(a) you do not make any payment to us when it is due; or
(b) you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to supply piece(s) of art; or
(c) you do not, within a reasonable time, allow us to deliver the piece(s) of art to you or allow us access to your premises.

If the contract is terminated for reasons other than set out in this termination clause, for avoidance of doubt not for your fault, we will refund, in accordance with our refunds or returns policy as set out on our website, and as modified by us from time to time and which is hereby incorporated to and forms a part of these terms and conditions, any money you have paid in advance for piece(s) of art we have not supplied.

Where the contract is terminated for reasons related to your conduct, we may deduct or charge you such amount as is specified in our refunds or returns policy or other reasonable amount as compensation for the net costs we will incur as a result of terminating the contract.

Disclaimer and Limitation of Liability

All information, content, materials, products and other services included on or otherwise made available to you through the marketplace are provided on an "as is" and "as available" basis, unless otherwise specified in writing within the marketplace. Kendi Art makes no representations or warranties of any kind, express or implied, as to the operation of the website and or the marketplace, or the information, content, materials, products or other services included on or otherwise made available to you through the website, unless otherwise specified in writing. You expressly agree that your use of the website and or the marketplace is at your sole risk.

Notwithstanding anything contrary in these terms and conditions, in any event Kendi Art and its Affiliates shall not be liable (whether in contract, warranty, tort (including, but not limited to, negligence), product liability or other theory), to you or any other person or entity for any indirect, incidental, special, consequential, punitive or exemplary damages (including damages for loss of revenues, loss of profit or anticipated profits, loss of goodwill, loss of business or data) arising out of or in relation these terms and conditions. Kendi Art’s entire liability to you under these terms and conditions or under any applicable law or equity shall be limited solely to actual and proven direct damages sustained by you as a result of the gross negligence or wilful misconduct of Kendi Art and its Affiliate and their respective directors, officers, employees and agents in the performance of their respective services and other obligations under these terms and conditions. In no event shall Kendi Art be liable, vicariously or otherwise, to you or any third party claiming through you for any losses, damages, liabilities, costs (including reasonable legal costs) and expenses (including taxation) which are in the aggregate in excess of the amounts paid by you to Kendi Art for the piece(s) of art.

For purposes of this clause, “Affiliate” shall mean any person or entity directly or indirectly through one or more intermediary Controlling, Controlled by, or under direct or indirect common Control with Kendi Art and “Control”, “Controlled” or “Controlling” shall mean, with respect to any person or entity, any circumstance in which such person or entity is controlled by another person or entity by virtue of the latter person or entity controlling the composition of the board of directors or managers or owning the largest or controlling percentage of the voting securities of such person or entity or otherwise controlling the other.

Personal Information

The use of this website and the marketplace or certain services in our website require registration or subscription. Should you choose to register or subscribe for any such services or related features, you agree to provide accurate and current information about yourself, and to promptly update such information if there are any changes. Every user of the website is solely responsible for keeping passwords and other account identifiers safe and secure. The account owner is entirely responsible for all activities that occur under such password or account. Furthermore, you must notify us in writing of any unauthorized use of your password or account.

We shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this section. During the registration process you agree to receive promotional emails from the website. You can subsequently opt out of receiving such promotional e-mails in the manner prescribed by clicking on the link at the bottom of any promotional email.

Your personal information will be required by us to provide the services. By using the website, you hereby grant us to use such personal information to provide the services. You also grant us the authority to provide such information to third party suppliers and providers who we may engage to provide services.

Authorized Persons

If you wish to authorize any person (provided that such person has capacity to enter into contracts) to give instructions on your behalf please notify us in writing by completing and delivering to us our standard agent authorization form. All appointments of authorized persons shall be at our discretion and we may cease to recognize the authority of any authorized person at our absolute discretion. Unless otherwise expressly excluded by Kendi Art, all corporate customers must appoint an authorized person and proof of such appointment shall be provided to us on demand. Unless and until we are informed in writing that the authority of any authorized person has been withdrawn, any action taken by us in conforming to instructions given under such authority shall be binding on you and these terms shall be binding upon your authorized person.

We may act on instructions given by authorized persons and may disclose account balances and any other details about your account or transactions to authorized persons.

We shall not be liable to you in respect of any loss whatsoever and howsoever arising from effecting instructions given by or otherwise dealing with an authorized person and you shall solely be responsible for: (a) all instructions given by an authorized person which shall be binding upon you; and (b) the manner in which an authorized person uses your account.

If you have selected authorized persons to act for you, then subject to any specific limitations that we agree when you appoint that person, the authorized persons may give any instructions for you and may otherwise enter into transactions with us for you, including: (a) entering into agreements with us for the provision of further products or services which they consider to be in your interests; (c) giving us instructions and setting up security procedures for giving instructions in connection with services and products; and (d) changing the authorized persons at any time.

Anti-money laundering

You shall not pay or deposit funds received from unknown or suspicious sources into your account. You will use your account solely in your personal capacity and you will update the information and documents provided concerning your account where there is any change to such information as required by the provisions of any law, regulations, guidelines or directives relating to anti-money laundering.

You shall not use the marketplace in furtherance of money laundering, terrorism, nor will you provide administrative access of your account on the website and the marketplace to any persons (including any natural person, government or private entity or other form of body corporate) that has any affiliation with others whatsoever who sponsor or support the above such activities or causes or is located in or is a national of any country that is embargoed, restricted or subject to sanctions that would restrict the use of the website and or the marketplace by such person or restrict the performance of our obligations under this contract.

If we suspect any form of money laundering or terrorism financing, or at any time pursuant to our request, you shall immediately upon demand provide such due diligence information relating to you (together with a certification or translation, where required) as may be requested by us.

You hereby represent and warrant (which representations and warranties shall be deemed to be repeated by you on each date on which a transaction is entered into under this contract) that you are the principal holder of, and the sole beneficiary in respect of your account, and that you shall not pay to us or deposit funds received from unknown or suspicious sources into your account. You will use the website solely in a personal capacity and will update the information and documents provided concerning your use of the website if there emerges any reasons or changes so requiring, as required by the provisions of anti-money laundering and counter-terrorist financing laws or other laws or regulations in the Republic of Kenya or in any other relevant jurisdiction.

Intellectual Property

All intellectual property rights, whether registered or unregistered, in the website, information content on the website and all the website design, including, but not limited to text, graphics, software, photos, video, music, sound, and their selection and arrangement, and all software compilations, underlying source code and software shall remain our property. All rights are reserved.

For the purposes of this clause “intellectual property rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and servicemarks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Notices, instructions and other communications

Any notification or other communication given to us under this contract shall be as specified or required under the website or in writing and sent to the address set out below or such other address as may be notified by us to you and such notice to us shall take effect upon its actual receipt by us:
Our contacts are as may be provided on our website from time to time.

All written communications by us to you under this contract shall be sent to the last postal or e-mail address notified to us by you or by posting such information on our website and shall be deemed to have been received by you when sent to the relevant address or when posted on our website as the case may be.

We may record telephone conversations with you without the use of a warning tone, and may use the recordings as evidence in the event of a dispute.

All communications between us under this contract and documents and other information provided by us to you in connection with our services shall be in English.

Other Important Terms

These terms and conditions contain the entire agreement between the you and us with respect to the supply and delivery of our Piece(s) of art to you and supersedes all previous agreements and understandings between us.

Any sums due to us or any third party in respect of commissions, costs, fees, expenses or otherwise pursuant to these terms and conditions (plus any applicable taxes) may be set-off and deducted, without prior notice, from your assets (including cash) (“Assets”) held by us or under our control and we may have recourse against and sell, realize or dispose of the Assets (or any part thereof) and apply the proceeds in or towards discharge of such sums. You hereby acknowledge, accept and irrevocably authorize us or any third party to deduct and set-off any commissions, transfer fees, registration fees, taxes, duties and other fiscal liabilities and all other liabilities and costs (including withholding taxes)in connection with this contract from payments due to you or otherwise from the Assets (or part thereof).

You hereby unconditionally and irrevocably guarantee to each third party dealt with by Kendi Art on your behalf under this contract without offset or limitation, as primary obligor and not merely as surety: (a) the due, punctual and full payment by you, on demand, of all amounts (including taxes) for which Kendi Art is or becomes liable in connection with your use of the website and or the marketplace; and (b) the due, punctual and full performance by you of, and compliance by you with, all covenants, terms and conditions (including any and all indemnities) for which Kendi Art is or becomes liable in respect of your use of the website and or the marketplace.

You undertake to indemnify, on demand, and keep us, our directors, our agents and employees fully and effectively indemnified against all loss, costs, charges, liabilities and expenses howsoever incurred by us, our directors, our agents or employees as well as all actions or proceedings which may be brought against us or any of them pursuant to or in connection with:

the purchase of any piece(s) of art by you;
our reliance on any of your declarations, undertakings, covenants, representations and warranties herein;
the enforcement or attempted enforcement our rights or remedies in this contract against you including without limitation to any legal fees;
our having incurred obligations to any third party, in the course of carrying out our obligations and covenants herein contained and the delivery of piece(s) of art to you;
any transaction or service requested by you and subsequently performed or transmitted by us on your behalf;
any breach of law by you;
any failure by you to perform or observe any of your obligations under this contract;
any representation or warranty made or given by you under this contract proving to be untrue or incorrect;
any error, omission, fraud, malfeasance, negligence, misappropriation or criminal act by you or by any of your clients, employees, representatives, agents or advisors; and
any failure, error, omission or delay of your computer or communications systems.

Nothing in these terms and conditions are intended to or shall be construed as establishing or implying any partnership of any kind between us, nor constitute either you or us as the agent of the other or otherwise entitle you or us to bind the other for any purpose.
We may assign or transfer our rights and obligations under these terms to a third party.

You shall not assign or transfer your rights to someone else without our consent.

Your rights under this contract are specific to you.

If a court finds part of this contract illegal, the rest will continue in force. Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.

Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

Whilst we shall endeavour to comply with our obligations in a timely manner you hereby irrevocably agree that we shall incur no liability whatsoever for any partial or non-performance of our obligations by reason of any cause beyond our reasonable control including but not limited to any communications, systems or computer failure, market default, suspension, failure or closure, or the imposition or change (including a change of interpretation) of any law or governmental or regulatory requirement and we shall not be held liable for any loss you may incur as a result thereof.

Applicable Law

These terms are governed by and construed in accordance with Kenyan law. Any dispute arising between us from these terms shall be determined at first instance by mutual negotiation and settlement within fourteen (14) days of the notification of a dispute by either party. In the default of settlement in the first instance by reference by either Party to arbitration by the Chartered Institute of Arbitrators , Kenya Branch in accordance with its rules.

Dispute Resolution

In case of any dispute over the provision of Services or arising from or in connection with this these terms of service or the interpretation, you agree that you will use your best efforts to settle the dispute amicably with Kendi Art.

If the dispute has not been settled despite best endeavours pursuant to the amicable settlement within 30 days or such longer period as you may agree with Kendi Art then, any party may elect to commence arbitration. Such arbitration shall be referred to arbitration by a single arbitrator to be appointed by agreement between the Parties or in default of such agreement within 14 days of the notification of a dispute, the arbitrator shall be appointed, upon the application of either Party, by the Chairman for the time being of the Kenya Branch of the Chartered Institute of Arbitrators of the United Kingdom.

Such arbitration shall be conducted in Nairobi in accordance with the Rules of Arbitration of the said Institute and subject to and in accordance with the provisions of the Arbitration Act 1995.

To the extent permissible by Law, the determination of the Arbitrator shall be final, conclusive and binding upon the Parties hereto.

Pending final settlement or determination of a dispute, the Parties shall continue to perform their subsisting obligations if the nature of the dispute shall not impede continued relationship. Nothing in this terms of service shall prevent or delay a Party seeking urgent injunctive or interlocutory relief in a court having jurisdiction.