TERMS OF SALE
Kevin Yagher Productions Inc. (“KYPI”) operates this Big Cartel web store (“Web Store”). By placing an order you are offering to purchase a product subject to the terms and conditions herein. All orders are subject to availability and confirmation of the order price. While we try and ensure that all details, descriptions and prices that appear on this Web Store are accurate, errors may occur. If we discover an error in the price or description of any items which you have ordered we will inform you of this as soon as possible and give you the option of reconfirming your order at the correct price and description or cancelling it. If we are unable to contact you we will treat the order as cancelled. Shipping times may vary according to availability and subject to any delays resulting from postal delays or force majeure for which we will not be responsible.
SERVICE AND PRIVACY
PLACING AN ORDER AND PAYMENTS
When placing an order you warrant that all details you provide to us are true and accurate, and that you are an authorized user of the credit card or the Paypal account from which the funds will be withdrawn and that there are sufficient funds to cover the total cost of the purchase. All payments must be received in U.S. Dollars.
The shipping costs listed on the Web Store are for shipments to the continental United States only. If the shipment is to be delivered to a location outside the continental U.S., you must contact us by email with the shipping location and any other details that we may need to calculate appropriate shipping costs. We will then notify you of the total amount to be paid and any other information you may need to proceed with the purchase. Please note that some countries have restrictions, and so we may be unable to ship to certain international locations.
KYPI retains the right to refuse any request made by you. We may communicate back with you by email either to notify you that the item is no longer available, to notify you that all of the payment and/or shipping information was not submitted, to request further information from you pertaining to the purchase of the item or to give you additional information pertaining to the item.
If you want us to ship the item to an international location, your payment to us will not include import duty charges and taxes, custom charges, tariffs or any other shipping or other charges of which we are unaware. If you request that we ship the item to a destination within California, appropriate California sales tax shall be added to the total price.
Once ordered, the purchase may be canceled only under exceptional circumstances and only at the sole discretion of KYPI. ALL SALES ARE FINAL. Due to the unique nature of KYPI’s items, we do not offer an evaluation or cooling-off period. In the event of a cancellation, a 20% restocking fee shall be deducted from the purchase price plus any shipping charges incurred before issuing the refund.
KYPI will only ship to a physical address, not a P.O. Box. KYPI will ship all packages with the full value of the goods declared and insured. Shipment will be made by UPS or a comparable carrier and will be considered FOB Origin as the term in understood in North America. For clarity, the risk of loss and title for such items pass to you upon our delivery to the carrier. You pay all shipping costs. You are responsible for all shipping costs and associated fees, whether governmental or otherwise, taxes, duties, customs, tariffs, and other charges for items shipped. All property must be shipped at your expense. It is your sole obligation and responsibility to be aware of, to comply with, and to bear all relevant import duties, taxes customs, tariffs and other fees charged by your local government and/or tax authority. You understand and agree that KYPI or its associates shall have no obligation or responsibility for any import duties, taxes, customs, tariffs, shipping or other charges for the items shipped.
It is your responsibility to ensure that any items purchased from KYPI enters the shipping location lawfully, that all duties and taxes have been paid and that all required export procedures, regulations, and laws were properly complied with. You understand and agree that KYPI shall have no obligation or responsibility for complying with any export procedures, regulations, or laws applicable to the items.
In the event that you refuse to accept the shipment for any reason, including but not limited to import duty charges, or if a release signature could not be obtained by the carrier and the shipment is returned to us, you shall be subject to a charge of 20% of the purchase price of the returned item, plus all shipping charges incurred in the shipment and return shipment of the item. Upon our receipt of the returned item from the carrier, title for such items will pass back to KYPI.
WARRANTIES OF ITEMS, DESCRIPTIONS AND IMAGES
KYPI warrants the authenticity of the items for sale on its Web Store. For clarity, unless specifically stated otherwise, the items for sale are either created by KYPI, its employees or its associates.
KYPI and its associates attempt to be as accurate as possible with the product descriptions of items for sale. However, KYPI does not warrant that product descriptions or other content of this site is complete, reliable, current, or error-free. To the fullest extent permitted by law, we make no warranties as to the merchantability or fitness for a particular purpose, the correctness of the description of the physical condition, size, quality, rarity, importance, medium, provenance, exhibitions, literature or historical relevance of any items sold by KYPI. No oral or written statements made in the online listing, advertisement, and bill of sale or elsewhere made by employees (including affiliated and related companies) shall be considered a warranty or representation. To the fullest extent permitted by law, we are not responsible for errors and omissions in the online listings or any other supplemental material. KYPI assumes no liability or responsibility for any errors or omissions in the content of its Web Store.
In the event a sale is cancelled or rescinded for any reason, KYPI shall repay the purchase price to you less a 20% restocking fee and any incurred shipping charges. Repayment of the purchase price shall be the your sole remedy. It is specifically understood that this will be considered your sole remedy. You expressly agree that KYPI shall not be liable in whole or in part, for, and you shall not be entitled to recover, any special, indirect, incidental or consequential damages including loss of profits or value of investment or opportunity cost. Except as expressly provided in these Terms of Sale, KYPI shall have no liability to you in respect of an item and all and any implied warranties and conditions are excluded to the fullest extent permitted by law.
All items are sold as collectibles and/or memorabilia for display purposes only, and are not deemed, intended, represented, or implied to be fit for any other purpose. You assume all risks of loss and/or injury, including, but not limited to, personal injury or property damage, arising from or related to any other use of the item. You understand and agree that KYPI shall have no liability for any such loss or injury and you expressly release KYPI from any such loss or injury. Only the memorabilia item shown in the photos of a given product listing is included in the sale. KYPI does not own any copyrights or trademarks to the items, or depictions thereof (the “Images”), appearing for sale on its Web Store. Items and Images may or may not permit reuse or modification. Any Images appearing on this Web Store are solely for reference purposes and are not intended or deemed to be a representation or warranty of the item depicted within the Image. You agree to indemnify and hold harmless KYPI and its directors, employees, affiliates, contractors and agents from any third-party claims, actions, suits, judgments, losses, damages, costs and expenses (including reasonable attorneys’ fees) asserted against or incurred by KYPI that arise out of or result from any act or omission by you arising out of or relating to your infringement of any copyrights or trademarks in or to the items or Images.
If any applicable conditions herein are not complied with (to a material extent), you will be in default and in addition to any and all other remedies available to us by law, including, without limitation, the right to hold you liable for the total purchase price, including all fees, charges and expenses more fully set forth herein, we, at our option and to the extent permitted by law, may (a) cancel the sale of that, or any other items sold to you, retaining as liquidated damages all payments made by you, or (b) resell the purchased item, or (c) effect any combination thereof. In any case, if you are in default, you shall be liable for any deficiency, any and all costs, handling charges, late charges, expenses of both sales, legal fees and expenses, collection fees and incidental damages. KYPI may, in its sole discretion, apply any proceeds of sale then due or thereafter becoming due to you from us or any affiliated company, or any payment made by you to us or any affiliated company, whether or not intended to reduce your obligations with respect to the unpaid item or items, to the deficiency and any other amounts due to us or any affiliated companies. In addition, if you are in default, you will be deemed to have granted and assigned to us and our affiliated companies, a continuing security interest of first priority in any property or money of our owing to you in our possession or in the possession of any of our affiliated companies, and we may retain and apply such property or money as collateral security for the obligations due to us or to any affiliated company of ours. Payment will not be deemed to have been made in full until we have collected good funds.
Save where expressly stated to the contrary above, under no circumstance will KYPI incur liability to you in excess of the purchase price actually paid.
Neither party will be liable or responsible for any failure to perform or delay in performance of any of its obligations that is caused by an event outside its reasonable control including, without limitation, industrial action, civil commotion, war, terrorist attack, fire or natural disaster or failure of third party public or private transport.
If we delay or fail to insist that you perform any of your obligations under these Terms of Sale, it will not mean we have waived our rights.
Any claim or controversy arising out of or relating to the sale of items between you and KYPI shall be submitted to arbitration in Los Angeles County, California before an arbitrator from the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) and conducted under its Comprehensive Arbitration Rules, as the exclusive remedy for such claim or controversy except that, to the extent you have in any manner violated or threatened to violate the intellectual property rights of KYPI, its licensors, its content suppliers or other such entities, KYPI and/or its licensors, its content suppliers or other such entities may seek injunctive or other appropriate relief in any state or federal court in California, and you consent to exclusive jurisdiction and venue in such courts. Both parties further agree that, for any claim or controversy submitted to arbitration, the arbitration shall be conducted before a single JAMS arbitrator who is a retired California or federal judge or justice. By agreeing to arbitrate, the parties waive any right they have to a court or jury trial. The decision of the arbitrator shall be final and binding. The parties further agree that, upon application of the prevailing party, any Judge of the Superior Court of the State of California, for the County of Los Angeles, may enter a judgment based on the final arbitration award issued by the JAMS arbitrator, and the parties expressly agree to submit to the jurisdiction of this Court for such a purpose. The prevailing party shall be entitled to recover the party’s attorneys’ fees and costs incurred in connection with the arbitration. To the fullest extent permitted by applicable law, no arbitration under these Terms of Sale shall be joined to an arbitration involving any other party subject to these Terms of Sale, whether through class arbitration proceedings or otherwise.
You agree to indemnify, defend and hold harmless KYPI, its directors, officers, employees, consultants, agents, and affiliates, from any and all third party claims, liability, damages and/or costs (including, but not limited to, legal fees) arising from your use this Web Store or your breach of the Terms of Sale.
KYPI shall have the right in its absolute discretion at any time and without notice to amend, remove or vary the Terms of Sale and/or any page of this Web Store.
Each sentence and paragraph of these terms operates separately and if any court or relevant authority decides that any of them are unenforceable, the remaining paragraphs will remain in full force and effect. For clarity, if any part of the Terms of Sale is unenforceable (including any provision in which we exclude our liability to you) the enforceability of any other part of the Terms of Sale will not be affected all other clauses remaining in full force and effect. So far as possible where any clause/sub-clause or part of a clause/sub-clause can be severed to render the remaining part valid, the clause shall be interpreted accordingly. Alternatively, you agree that the clause shall be rectified and interpreted in such a way that closely resembles the original meaning of the clause /sub-clause as is permitted by law.
If you breach these conditions and we take no action, we will still be entitled to use our rights and remedies in any other situation where you breach these conditions.
By visiting this Web Store, you agree that the laws of the state of California, U.S.A., without regard to principles of conflict of laws, will govern these Terms of Sale and any dispute of any sort that might arise between you and KYPI or its associates. The terms and conditions of sale herein described shall be enforced in accordance with, and governed by the laws of the State of California.