Kunvay Buyers Agreement
This Buyers Agreement (the "Agreement") is a legal agreement between you and Kunvay LLC ("Company") with a principal business address of P.O. Box 201150, New Haven, CT 06520-1150. This Agreement contains the complete terms by which you as a buyer (the "Buyer") of intellectual property may enter into an agreement with the Kunvay.com website (the "Website"). "Company" and/or "Website" may be individually or collectively referenced as "we" or "us."
You expressly agree that this Agreement is a valid and binding document, which is enforceable against you and/or your business in accordance with its terms.
By clicking on the box indicating your assent to the Buyers Agreement, you agree to be bound by the terms set forth below.
1. Buyer Terms
- Eligible IP. Kunvay’s current policy is to limit the categories of intellectual property ("IP") eligible for transfer pursuant to this Website to design work, photos, and written text (the "Copyrighted Works").
- Limitations on the Value of Assigned IP. The aggregate value of any IP to be assigned through this Website ("Assigned IP") in any single assignment and/or transaction shall not exceed Ten Thousand U.S. Dollars ($10,000.00 USD).
- Escrow Process. Either you or the creator of the IP (the "Creative") may set up an assignment through our Website at any time during which a Creative is working with you. To set up a assignment, you or a Creative must open a project room, initiate the set-up of an escrow for the IP, and enter into an escrow agreement, which agreement will set forth the terms and conditions for the assignment and the release of any payments. Upon execution of the escrow agreement and completion of the services, the Creative will upload the specified IP to the escrow. Upon receipt of your payment(s) in accordance with the terms of the applicable escrow agreement, we will release and assign all right, title, and interest in the Assigned IP to you.
- Designated Recipient of Assigned IP. You may designate a third party to be the recipient of the assigned IP (the "Designated IP Recipient"). Any such designations should be expressly stated in the escrow agreement. Any Designated IP Recipient shall be bound by the terms and conditions of this Agreement.
- Service Fees. You will be charged the applicable service fees then in effect on the date in which you enter into the escrow agreement with the Creative. Our current service fees are posted to our Website. Payment is due prior to the release of the IP from escrow. We accept as payment VISA, MasterCard, Discover, American Express, and PayPal.
- Chargebacks. In the event you do a chargeback for any reason following the release and assignment of the escrowed IP to you, your defaulted balance will be assigned to our collection agency for collections and credit reporting. You agree to cover any costs incurred as a result of the charge back or collections activity. We also reserve the right to automatically terminate the escrow agreement you entered into for material breach.
- Storage of IP. We limit the storage of all uploaded IP and executed escrow agreements to ninety (90) days. It is your responsibility to promptly pay all applicable service fees, and download the released IP and applicable escrow agreement prior to the expiration of the ninety (90) day period.
2. Term; Cancellation
The term of your Agreement shall commence as of the date when you approve the terms set forth herein and shall expire upon the completion of the assignment of Intellectual Property to you, unless otherwise cancelled ("Term"). Either you or Buyer may cancel this Agreement at any time prior to the completion of the assignment without incurring any charges. Cancellation is not available following the completion of the assignment.
The following terms and conditions will survive any expiration or cancellation of this Agreement until they are fully exhausted: Sections 1(d-f), 2-4, and 6-15. For the avoidance of doubt, any chargeback following the expiration of this Agreement shall be deemed to constitute a material breach of the survival clauses.
3. Operation of Website
We use commercially reasonable efforts to maintain our Website and to keep it operating on a twenty-four (24) hour, seven (7) day a week basis, free from bugs, errors, technical problems, or defects. If, at any time in the future, we identify any bugs, errors, technical problems, or defects, then we will assign technicians to address and resolve the issue.
If you become aware of an error, bug, or other technical problem, then you should notify us immediately of the incident and provide us with the following information:
- Description of the Incident. The specific sequence of events which generated the incident, and a full description;
- Description of Error Message. The exact wording of any error messages, if applicable; and
- Description of Discovery of Incident. Any special circumstances surrounding the discovery of the incident for which you are seeking technical support.
4. Prohibited Uses of Website
Our Website should only be used for lawful purposes. We specifically prohibit you from making any other use of the Website, including but not limited to the following:
- Impersonation; Misrepresentation: Posting or submitting to the Website any information in which you impersonate or claim to be any third party, or in which you misrepresent your affiliation with another person or entity;
- Providing Unauthorized Access to the Website: Disclosing or sharing your password with any third party or allowing such third party access to a our Website;
- Objectionable Communications through Website: Posting content or initiating communications which are unlawful, libelous, abusive, obscene, discriminatory, or otherwise objectionable;
- Illegal Activity: Using the Website for any illegal purpose;
- Disclosing Confidential Information without Permission: Sharing information or initiating communications with information you are under an obligation not to disclose;
- Posting Infringing Content: Posting infringing content to the Website;
- Tampering with the Website: Taking any action that disrupts, tampers with, interferes, or imposes an unreasonable burden on the Website’s infrastructure, servers, data, or network or those of any third party via our Website;
- Using Unauthorized Search Tools: Using or attempting to use any engine, software tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Website other than generally available third party browsers (including but not limited to Internet Explorer, Firefox, Safari, and Chrome);
- Uploading Viruses: Posting or submitting any content that contains software viruses or any computer code, files, or programs designed to interrupt, destroy, or limit functionality of the Website or of any computer software, hardware, or telecommunications equipment;
- Infringing Intellectual Property in Website: Deciphering, decompiling, disassembling, copying, duplicating, aggregating, or reverse engineering any of the software, content, information, or other materials comprising or in any way making up part of the Website;
- Mining Data from the Website: Using any means of automatically searching or mining data from the Website, or in any way attempting to interfere with the proper working of the Website;
- Stalking or Harassment: Stalking, harassing, or threatening any user of this Website or any Creative; or
- Harvesting Personal Information: Collecting or storing personal information about any user of this Website or any Creative.
5. Warranty; General Disclaimer
If you are entering into this Agreement on behalf of a business, you represent and warrant that you are the owner of the business, or if not, that you have the full power and authority to enter into this Agreement on behalf of the business and that you have provided true, accurate, and correct information to us.
If you are entering into this Agreement on your own behalf, you warrant and represent that you are an individual who is at least eighteen (18) years of age and capable of forming legally binding contracts.
You further warrant and represent that your obligations under this Agreement will not conflict with or violate any contractual obligations under any other Agreement with any third party or violate any other applicable law or regulation. You also warrant and represent that (a) you will comply with the terms, conditions, obligations, representations, and warranties set forth in this Agreement; (b) that you will be financially responsible for all payments due and payable under this Agreement; and (c) that you will perform in accordance with your representations and warranties hereunder.
Your use and reliance on this Website and your reliance on this Website shall be at your sole risk. We make no warranty that your access to the Website will be continuous, uninterrupted, bug-free, error-free, virus-free, free of defects, or free of technical problems, nor can we make any warranty that uploaded IP will not be damaged, destroyed, or deleted from our Website. Buyers and Creatives are solely responsible for maintaining back-ups of all uploaded IP. We, however, will exercise reasonable care to maintain and back-up our Website at all times.
You agree and acknowledge that our services provided through this Website do not include filing copyright registrations or assignments with the U.S. Copyright Office, or performing any assessment as to whether any work can be registered with the U.S. Copyright Office. You agree that you shall solely be responsible for making any and all copyright registration or assignment filings, and for conducting any and all due diligence regarding the IP. In addition, you agree and acknowledge that our services do not ensure that any Creative receives the agreed upon payment for his or her services, and that you are solely responsible for ensuring that the Creative is paid in full upon his or her completion of the work.
TO THE EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
6. Limitation of Liability; Consequential Damages
You agree that we will not be liable to you or your Designated IP Recipient for any indirect, consequential, special, punitive, or exemplary damages, arising out of or in connection with this Agreement, including but not limited to damages for loss of profits, loss of goodwill, loss of business opportunities, loss of use, lost data, or other intangible losses (even if we have been advised of the possibility of such damages).
Our liability to you and your Designated IP Recipient, if any, for all claims in the aggregate shall in no event exceed the greater of the aggregate amount of all fees actually collected by us from you. Some jurisdictions do not allow the limitation of liability, so these limitations may not be applicable to you.
7. Release of Claims
To the maximum extent permitted by applicable law, you and your Designated IP Recipient, if any, hereby release and waive all claims against our Company, the Website, and our officers, members, managers, employees, independent contractors, representatives, and agents, including any and all liability for damages (actual and or consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature arising from or in any way related to Company, our Website, or our services, including but not limited to any claims that the IP assigned to you through this Website infringes or violates the rights of any third party.
If applicable, you and your Designated IP Recipient waive your rights under California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." You and your Designated IP Recipient understand that any fact relating to any matter covered by this release may be found to be other than now believed to be true, and accept and assume the risk of such possible differences in fact. In addition, you and your Designated IP Recipient expressly waive and relinquish any and all rights which either of you may have had under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.
You and your Designated IP Recipient, if any, expressly agree to indemnify, defend, and hold harmless our Company, Website, and our officers, members, managers, employees, independent contractors, representatives, and agents against any third party claim arising from this Agreement and/or you and your Designated IP Recipient’s relationship with us, including but not limited to damages, costs, expenses, suits, judgments, litigation costs, and attorneys fees.
9. Entire Understanding
You agree that this Agreement contains our entire understanding with respect to the subject matter contained herein, and that the Agreement shall supersede all prior agreements and understandings, whether written or oral. You agree that there will be no restrictions, promises, covenants, or understandings other than those expressly set forth herein, and that no rights or duties on the part of either party are to be implied or inferred beyond those expressly provided for.
10. Governing; Dispute Resolution
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of law principles. All disputes arising under this Agreement shall be submitted to binding arbitration under the Commercial Rules of the American Arbitration Association in New Haven, Connecticut by one arbitrator mutually agreed upon by you and us in accordance with the aforementioned Rules, except that if any Party is located outside the United States, then the dispute will instead be submitted to binding arbitration in New York, New York under the Rules of the International Chamber of Commerce. The costs of arbitration, including administrative and arbitrators’ fees, shall be shared equally by each of us. The arbitration award shall be final and each of us shall comply in good faith to the entry of the arbitrator’s award in any court having jurisdiction. If judicial enforcement or review is sought, then the prevailing party shall be entitled to costs and reasonable attorney’s fees. All claims that you bring against us or the Website must be resolved in accordance with this Section. All claims filed or brought against us contrary to the terms of this Section shall be considered improperly filed. Should you file a claim contrary to this Section, you agree that we may recover attorneys’ fees and costs for the improperly filed claim, provided that we have notified you in writing of the issue and you have failed to properly withdraw the claim.
You agree that if any provision of this Agreement is held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining provisions shall not be affected by such holding. You agree that we will negotiate and amend in good faith any such provision in a manner consistent with our intentions, if any invalid or unenforceable provision affects your or either party’s consideration under this Agreement.
You agree that the terms of this Agreement shall automatically be assigned in the event of a merger or acquisition of all or substantially all of either party’s business assets and be binding upon the successor business entity. In the event that you are an individual, this Agreement shall be automatically be binding upon your heirs, executors, and legal representatives in the event of your death.
We may modify our standard Agreement terms at any time, but you will only be bound by our amended terms if you expressly accept them when you enter into a new transaction with us.
Any notices required or permitted to be given to us hereunder shall be sent to the address set forth below, or to such other address that we specify in writing. Such notice shall be deemed to be given upon personal delivery or three (3) days after the date of mailing when sent by certified or registered mail, postage prepaid. The notice shall be sent as follows:
Attn: Legal Department
P.O. Box 201150
New Haven, CT 06520-1150
No waiver by us of any breach of this Agreement, no matter how long continuing or how often repeated, shall be deemed a waiver of any subsequent breach thereof, nor shall any delay or omission on the part of either of us to exercise any right, power, or privilege hereunder be deemed a waiver of any such right, power, or privilege.
Should you have any questions, complaints, or other concerns about this Agreement, or you want to contact us for any other reason, then you should direct all communications to our email address at firstname.lastname@example.org.