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© 2021 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 display sell, deliver and receive payment 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 Kirichwa Road, Kilimani in Nairobi, 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.

We have made all reasonable efforts to collaborate with the best third-party service providers to make our end-to-end marketplace user experience 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 an 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.

Your Obligations

1. To update your inventory

You undertake to Kendi Art that the works of art you display at the marketplace shall always be up-to-date such that it shall reflect available stock at any given time. Any work of art displayed shall upon being sold either through our marketplace of through display at your gallery/studio, you shall immediately update your account that the piece of art is sold so that other buyers shall not purchase for the same piece of art.

Failure to update your account, shall lead to your account being suspended and in addition may be called upon to indemnify Kendi Art for any damages that it might suffer for disappointed clients.

3. To display your own work or with authority of the owner

You undertake to Kendi Art that any piece of art displayed on our marketplace through your account shall be your intellectual property in the alternative that you are duly authorized by the owner to display their work.

You hereby warrant to Kendi Art your authority to display, offer for sale, and to facilitate delivery of all works you display at the market place.

We take seriously any claims that works displayed on our marketplace are so displayed without authority or infringe on the intellectual property of any third party. On such claims we shall investigate and any claims so proven shall be acted upon.

Using our Services

You must follow any policies made available to you within the Services. Kendi Art only grants you a non-exclusive, non-transferable, non-sub-licensable, revocable license, to access to our marketplace.

Don’t misuse our Services. For example, don’t interfere with our Services or try to access them using a method other than the interface and the instructions that we provide. You may use our Services only as permitted by law. We may suspend or stop providing our Services to you if you do not comply with our terms or policies or if we are investigating suspected misconduct.

Using our Services does not give you ownership of any intellectual property rights in our Services or the content you access. These terms do not grant you the right to use any branding or logos used in our Services. Don’t remove, obscure, or alter any legal notices displayed in or along with our Services.

You agree and acknowledge that Kendi Art is the sole owner of the branding, logos or names (“Marks”) used in our Services. You also agree not to contest or aid in contesting Kendi Art’s rights in, or the validity of, those Marks, including, but not limited to, by applying to register any Mark that is confusingly similar to those Kendi Art Marks. "Marks" means all trademarks, service marks, logos or trade names used to identify Kendi Art and its services.

Our Services display some content that is not Kendi Art’s. This content is the sole responsibility of the person that makes it available. We may review content to determine whether it is illegal or violates our policies, and we may remove or refuse to display content that we reasonably believe violates our policies or the law. But that does not necessarily mean that we review content, so please don’t assume that we do.

In connection with your use of the Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications.

Your Content in our Services

You retain ownership of any intellectual property rights that you hold in the content you upload on our marketplace. In short, what belongs to you stays yours.

Your content must not violate, or encourage or facilitate the violation of, our terms and conditions or third party intellectual property rights. Kendi Art is not responsible for your content that violates third party Intellectual property rights.

By accepting the terms and conditions of use of the Kendi’s Art and use of its market place, you grant Kendi Art authority by licencing your pieces of art for reprint for commercial purposes on revenue share agreed upon. This clause does not infer transfer of ownership of the pieces of art to Kendi Art and you undertake to indemnify Kendi Art from any suit or claims arising from infringement of any third party intellectual rights and related claims.

Your Artist Account (Account)

You will need to create an Account to enable you upload for display, sell, deliver and receive payment for your works of art on our marketplace (use of our Services). Though you can view some content on the website before creating an Account, you are required to create your own Account to fully access and use our Services.

By creating an account on our website, you warrant to Kendi Art that you have the capacity to use the Gallery, and to enter into these Terms of Service.

You are responsible for the activity that happens on or through your Account. Therefore, to protect your Account, keep your password confidential.

You will be required to provide a valid email address while creating your Account for purposes of verifying your account. You are responsible for ensuring that the email address associated with your Account is accurate and secured with a strong password.

We are not responsible for personal data transmitted to a third party as a result of you providing an incorrect email address or deliberately or inadvertently providing, allowing a third party access to your registered email address and or Account.

We shall reasonably endeavor to activate your Account within a reasonable time frame. Kendi Art will not be liable for any costs or expenses, breach of expectations or any other liabilities that could arise because of any delay occasioned by the failure to activate the Account within your expectations.

We reserve the right to delete inactive Accounts on our website.

For purposes of receiving payments for piece(s) of art sold through our marketplace you will be required to provide further payments details which could be subject to further terms. Those terms are additional to these terms of service.

Anti-money laundering

You shall not receive 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.

Privacy

Kendi Art privacy policy explains how we treat your personal data and protect your privacy when you use our Services. By using our Services, you agree that Kendi Art can use such data in accordance with our privacy policy.

Improvement of our Services

These Terms of Service do not grant you any rights in any of our services or software or the content accessed through them. While we appreciate it when Artists send us feedback, please be aware that we may use, modify, incorporate into our products and services, license and sub-license, any feedback, comments, or suggestions you send us or post in our forums without any obligation to you.

Modifying and Terminating our Services

We are constantly changing and improving our Services. We may add or remove functionalities or features, and we may suspend or stop a Service altogether.

You can stop using our Services at any time, although we’ll be sorry to see you go.

Kendi Art may also discontinue your access and use of our services at any time or suspend your access to some content on the marketplace: (a) if you breach any provision of these Terms of Service; (b) if you delete your Artist Account; (c) if Kendi Art is required to do so by law; (d) if Kendi Art ceases to offer any services covered by these Terms of Service; (e) if you or your access become a threat to users of the Services (f) failure to pay subscription fee

Kendi Art may also suspend provision of the Services in order to address any security threat.

UPON ANY TERMINATION OR SUSPENSION OF ACCESS, YOU MAY LOSE ACCESS TO ANY CONTENT, MATERIALS OR INFORMATION THAT YOU HAVE UPLOADED ON KENDI ART’S MARKETPLACE RELATED TO YOUR ART UPLOADED ON TO OUR MARKETPLACE.

We believe that you own your Art and preserving your access to such is very important. If we discontinue a Service, where reasonably possible, we will give you reasonable advance notice and a chance to get information out of that Service.

Our Warranties and Disclaimers

Indemnity

You will indemnify, defend and hold KENDI ART LIMITED, our affiliates, agents, and licencors harmless from all costs and expenses (arising from any third party claim relating to: (a) your breach of these Terms of Service or any act or omission by you in connection with your use of our Service; or (b) your collection or use of User Data. You may not settle any claims that limit our rights without our prior written consent (which will not be unreasonably withheld)

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL, KENDI ART ,ITS AFFILIATES, OR AGENTS BE LIABLE FOR (a) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, OR (b) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF KENDI ART KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE LIABILITY OF KENDI ART, ITS AFFILIATES, AND AGENTS FOR ALL CLAIMS RELATING TO OUR SERVICES WILL NOT BE MORE THAN THE GREATER OF KES 100 OR ANY AMOUNTS PAID BY YOU TO KENDI ART FOR THE SERVICES IN QUESTION DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE PLATFORM DEVELOPER'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

About these Terms

We may modify these terms or any additional terms that apply to a Service to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly. We’ll post notice of modifications to these terms on this page. We’ll post notice of modified additional terms in the applicable Service. Changes will not apply retroactively and will become effective no sooner than fourteen days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service.

THESE TERMS OF SERVICE WILL BE GOVERNED BY THE LAWS OF KENYA EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES LITIGATED EXCLUSIVELY IN KENYA EXCEPT YOU AGREE THAT KENDI ART MAY APPLY FOR INJUNCTIVE RELIEF IN ANY JURISDICTION.

These Terms of Service, along with any licenses to the Gallery, our Privacy Policy, and our Artist Guidelines, constitute the entire and exclusive agreement between you and Kendi Art with respect to the services, and supersede and replace any prior or contemporaneous agreements, terms, and conditions applicable to the gallery.

These Terms of Service create no third party beneficiary rights. Kendi Art’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable the remaining provisions of the Terms of Service will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible.

You may not assign any of your rights in these Terms of Service, and any such attempt is void, but Kendi Art, may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.

Kendi Art and you are not legal partners or agents.

If there is a conflict between these terms and the additional terms, the additional terms will supersede for that conflict.

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 endeavors 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.