Terms and Conditions
Use of the site & PROHIBITIONS
The Site allows you to shop online. However, you are prohibited to do the following acts,: (a) use our sites, including its services and or tools if you are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from using our sites, services, or tools (b) collecting information about users’ personal information; (c) post false, inaccurate, misleading, defamatory, or libelous content; (d) take any action that may damage the rating system.
For you to complete the sign-up process in our site, you must provide your full legal name, current address, a valid email address, and any other information needed in order to complete the signup process. You must qualify that you are 18 years or older and must be responsible for keeping your password secure and be responsible for all activities and contents that are uploaded under your account. You must not transmit any worms or viruses or any code of a destructive nature.
Editing, Deleting and Modification
We may edit, delete or modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a notice or a new agreement on our site. YOUR CONTINUED PARTICIPATION IN OUR PROGRAM, VISIT AND SHOPPING IN OUR SITE FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
Acknowledgment of rights
You hereby acknowledge that all rights, titles and interests, including but not limited to rights covered by the Intellectual Property Rights, in and to the site, and that You will not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any of our services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto.
Sales Terms and Conditions
1. Controlling Provisions. All the provisions of these Sales Terms and Conditions (“Sales Terms”) shall apply between Buyer and HQ KITES, except where explicitly agreed otherwise in writing and signed by both parties. THE SALES TERMS CONTAINED HEREIN SHALL TAKE PRECEDENCE OVER ANY OTHER TERMS OR CONDITIONS AND NO CONTRARY, ADDITIONAL OR DIFFERENT PROVISIONS OR CONDITIONS SHALL BE BINDING ON HQ KITES UNLESS EXPRESSLY ACCEPTED BY HQ KITES IN WRITING. In the case of sales outside of the United States of America, Buyer and HQ KITES expressly agree that the provisions of the U. N. Convention on the Sale of Goods (C.I.S.G.) are herewith excluded.
2. Orders. Any initial order for any items sold by HQ KITES (the “Goods”) shall be at least for a minimum of $125.00, any re-order of Goods shall be at least for a minimum of $100.00. For any orders of Goods below such minimum amounts, a $10.00 service charge shall be added. Unless otherwise agreed by HQ KITES, any back-orders of Goods shall be at least for a minimum of $50.00, or otherwise subject of cancellation, at the sole discretion of HQ KITES.
3. Price/Taxes/Payment. The prices for the Goods shall be set forth in accordance with HQ KITES’ current price lists. Unless agreed otherwise in a writing signed by HQ KITES, subject to a credit application submitted by Buyer to HQ KITES’ full satisfaction, Buyer shall pay for the Goods in advance, prior to shipment. Any tax or other governmental charge imposed upon the sale of goods shall be paid by Buyer, and Buyer’s failure to do so shall be a breach of these Sales Terms and the underlying contract. HQ KITES, at all times, reserves its right to restrict the terms of payment or to require payment prior to time of shipment if, in HQ KITES’ opinion, Buyer’s financial conditions or other circumstances do not warrant shipment on the terms originally specified in the specific underlying contract. For any late payments made, there will be a service charge of 2% of the total amount due for each month that payment is in arrears, in addition to any reasonable attorney’s fees incurred due to any collection efforts as well as a $35.00 service fee for any returned checks. HQ KITES’S acceptance of any service charge or fee shall not be deemed a waiver of any rights HQ KITES may otherwise have by reason of Buyer’s non-payment. Invoices on net terms that are paid by credit card will incur a 3% convenience fee.
4. Time of Delivery/Packaging. HQ KITES as well as its agents will use reasonable efforts to deliver the ordered Goods as promptly as possible. A delay in delivery time, regardless of cause, shall not entitle Buyer to an offset against the purchase price or excuse any other payment or performance required by these Sales Terms and/or HQ KITES’ confirmation of order. HQ KITES shall not be liable under any circumstances for any special, incidental or consequential damages resulting from delay in the time of delivery. HQ KITES shall use its standard packaging. If, at the request of Buyer, the Goods are being shipped with special packaging, Buyer will be responsible for the additional costs thereof.
5. Costs/Identification and Risk of Loss/Passage of Title/Acceptance. The costs for shipment of the Goods or, upon specific request by Buyer, any insurance policy, shall be borne by Buyer. The Goods shall be identified to the agreement and risk of loss shall pass to Buyer when the Goods are placed in the hands of a carrier. Title to the Goods shall not pass to Buyer until all the amounts due to HQ KITES in respect of the delivery, including any interest and costs, have been paid. In addition, Buyer herewith grants to HQ KITES a continuing security interest in and a lien upon the Goods and any additions or accessions thereof and all cash and non-cash proceeds (including but not limited to accounts receivable) and products thereof (“Collateral”). Upon Buyer’s reasonable request, particularly in the event of any default in payment by Buyer, Buyer shall promptly notify Buyer’s debtor of HQ KITES’ rights in the accounts receivable or other Collateral. All Goods delivered are accepted based on inspection and acceptance at Buyer’s premises, or at any other destination specified by Buyer. Failure by Buyer or any other designated third party to inspect the Goods within eight (8) days of delivery constitutes a waiver of the right to inspect. Once Buyer has inspected the Goods or waives the inspection, Buyer shall have no right to revoke acceptance or to reject the Goods. Further claims, if any, are limited to those covered by the warranties set forth below.
6. Warranties/Disclaimer/Limitation of Liability. HQ KITES warrants that the Goods will conform to the description and specifications and be free from defects in material and workmanship for a period of twelve (12) months from delivery. Should any failure to conform to this warranty appear within twelve (12) months of delivery, HQ KITES shall, on written notification, correct such non-conformity, including non-conformance with the specifications, at HQ KITES' option, either by repairing any defective goods, or by making available a repaired or replacement item. This warranty shall be dependent upon Buyer’s written notification specifying in reasonable detail the alleged defect or nonconformance of the Goods to HQ KITES within eight (8) days of Buyer detecting such alleged defect or non-conformance of the Goods. THIS WARRANTY IS EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EXCEPT OF TITLE AND AGAINST PATENT INFRINGEMENT. CORRECTION OF NON-CONFORMITIES, IN THE MATTER AND FOR THE PERIOD OF TIME PROVIDED ABOVE, SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF HQ KITES TO BUYER, WHETHER BASED ON CONTRACT, NEGLIGENCE OR OTHERWISE WITH RESPECT TO OR ARISING OUT OF SUCH SALE OF GOODS. Neither party shall be liable for special, indirect or consequential damages. The remedies set forth in these Sales Terms are exclusive, and the liability of HQ KITES with respect to any agreement or sale or anything done in connection therewith, whether in contract, in tort, under any warranty or otherwise, shall not, except as expressly provided herein, exceed the price of the Goods on which such liabilities are based. The warranty provided for in this Section 6 shall not be applicable if Buyer is in arrears with any payments due with regard to the respective Goods. Any notices of warranty claims or other communication relating to Goods as well as all Goods claimed to be non-conforming must be shipped/sent to: HQ Kites & Designs U.S.A., Inc., 134 Freedom Ave., Powells Point, North Carolina 27966, U.S.A. Such Goods will be returned, repaired or replaced in a reasonable time period by issuance of a return authorization number (“RA”). HQ KITES’ acceptance of any Goods so shipped shall not be an admission that the Goods are non-conforming, and, if HQ KITES finds that any Goods returned are not defective, such Goods will be re-shipped to Buyer at its expense and Buyer shall be charged for the shipping costs incurred by HQ KITES, in addition to a restocking charge of 20%.
7. Suspension and Cancellation. For purposes of this Section 7, the term “Force Majeure” is defined as any and all circumstances beyond HQ KITES’ reasonable control, that permanently or temporarily prevents delivery of the Goods, including fire, flood, war, civil unrest, riots, strikes, lockouts, transportation delays, failure or curtailment in HQ KITES’ usual sources of supply, government decree or order, act of God and other material interruptions in the business of HQ KITES or of HQ KITES’ suppliers. In the event of the inability of either party to deliver Goods as a result of Force Majeure, HQ KITES shall be entitled to suspend the delivery of the Goods for no more than three (3) months, or to cancel any pending order in full or in part, without being liable in damages and without judicial intervention being required. During the period of suspension, HQ KITES shall be entitled, and at the end of such period shall be obliged, to decide on performance or on full or partial cancellation of any order then pending. In the event of cancellation in accordance with this Section 7, HQ KITES shall refund to Buyer all amounts paid to HQ KITES in connection with the order being cancelled, plus any interest that has accrued with respect thereto. If Buyer, prior to delivery of the Goods, cancels an order after acceptance by HQ KITES, or refuses or is unable to accept delivery of the Goods, or causes HQ KITES to stop performance on delivery of the Goods, Buyer agrees that HQ KITES shall be entitled to retain the entire amount paid by Buyer upon placement of the order as liquidated damages and not as a penalty. HQ KITES, without being liable in damages and without judicial intervention being required, at all times reserves its right to: (i) cancel any order for Goods; and/or (ii) to not deliver any more Goods to Buyer in the future if and when HQ KITES becomes knowledge of any of Buyer’s resale or advertisement of the Goods below HQ KITES’ suggested retail price (“MSRP”).
8. Miscellaneous. (a) All agreements to which these Sales Terms apply shall be construed in accordance with the substantive laws of North Carolina, without giving effect to this state’s or any other jurisdiction’s conflict of law principles. (b) The benefits and burdens of the parties shall bind and inure to their respective successors and assigns. Buyer and HQ KITES stipulate and agree that the court of competent subject matter jurisdiction for the city of Powells Point, North Carolina, U.S.A., shall have jurisdiction and both parties agree that such venue is proper in such courts for all actions or proceedings with respect to these Sales Terms. Furthermore, Buyer waives any objections in regard to the enforcement of judgments under the Uniform Foreign Country Judgment Enforcement Act. (c) If HQ KITES prevails in an action or suit to enforce these Sales Terms, HQ KITES shall be entitled to recover from Buyer its costs, including attorneys’ fees, incurred in such connection. Furthermore, Buyer shall indemnify HQ KITES for all costs, damages and interests that may be incurred by the latter as a direct or indirect consequence of any action brought against it by third parties in respect to performance of these Sales Terms or any contract hereunder; Buyer shall be bound by virtue of these Sales Terms to comply with a third party notice issued by HQ KITES. (d) Buyer shall not be entitled to any setoff claims or retention rights (“Counterclaims”), unless such Counterclaims are based on claims or rights against HQ KITES that are either: (i) undisputed; or (ii) legally binding with final force and effect and non-appealable. (e) Failure by either party at any time to require performance by the other party or to claim a breach of any provision of these Sales Terms will not be construed as a waiver of any subsequent breach nor affect the effectiveness hereof, nor any part thereof, nor prejudice either party as regards any subsequent action. (f) Should any term, warrant, covenant, condition, or provision of these Sales Terms be held to be invalid or unenforceable, the balance of these Sales Terms shall remain in full force and shall stand as if the unenforceable part did not exist.
9. Fraud. FRAUDULENT ACTIVITIES are highly monitored in our site and if fraud is detected HQ Kites shall resort al remedies available to us, and you shall be responsible for all costs and legal fees arising from these fraudulent activities.