VENDOR PORTAL TERMS & CONDITIONS
THE INFORMATION CONTAINED HEREIN SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE TRANSACTION(S) CONTEMPLATED FOR HEREBY. NOTE THAT SECTION 12 OF THESE TERMS CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS (I.E., CASE CONSOLIDATIONS AND CLASS-ACTIONS ARE NOT PERMITTED) AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES. PLEASE REVIEW THIS DOCUMENT IN ITS ENTIRETY BEFORE ENTERING INTO ANY TRANSACTION HEREUNDER IN ORDER TO CONFIRM YOUR ACCEPTANCE HEREOF. YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE UNLESS AND UNTIL YOU: (A) AGREE TO THESE TERMS AND CONDITIONS IN THEIR ENTIRETY; (B) ARE AT LEAST 21 YEARS OLD; (C) HAVE THE LEGAL AUTHORITY TO BIND THE ORGANIZATION THAT YOU REPRESENT, IF ANY, TO THESE TERMS AND CONDITIONS; AND (D) ARE NOT PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE'S CONTENTS, GOODS, OR SERVICES BY ANY APPLICABLE LAW, RULE, OR REGULATION.
1. Applicability of Terms and Conditions. These terms and conditions (these "Terms") shall apply to your purchase of products and related services through https://www.kivasales.com/ (the "Site"). These Terms are subject to change at any time without prior written notice by Kiva Sales and Service, Inc. (referred to herein as either “Company,” “we,” “us,” or “our”). The most recent version of these Terms shall be posted for your review at any time on the Site. Please review these Terms in their entirety prior to engaging in any transaction on the Site. Your continued use of the Site after any posting of updated Terms (which shall be dated as of their most recent update) shall constitute your acceptance of and agreement to any changes therein made.
2. Online Orders. When placing an order on our Site, you are effectively offering to purchase whatever products and services you select. We reserve the right to accept or reject any order in our own discretion. We will only accept an order in its entirety and reserve the right to reject an order in part or in its entirety. Inventory is not guaranteed and is subject to change without notice. Should we elect to accept your order, you will receive an electronic copy of the invoice as well as a physical copy included with your order. The physical invoice included with your order shall be the final and binding invoice. Any electronic invoice shall be used for internal reference only by you. Notwithstanding, we reserve the right to cancel any order once accepted by us (as evidenced by a confirming email) at any time in our sole discretion.
3. Payment Terms. All applicable prices are set forth alongside the goods and services offered on the Site. Such prices are subject to change at any time by us in our sole discretion without notice. The final price for the goods and services offered is set forth in the final invoice received by you with the applicable shipment. You will be responsible for the prices stated at the time of your transaction, as well as any: (i) sales, use, excise, and related taxes; and (ii) shipping and handling charges. Payment may only be made by cash, check, or ACH transfer. Payment terms shall be C.O.D. In the event of any inconsistencies between this Section 3 and the applicable invoice regarding payment terms, the applicable invoice shall control. By placing an order, you are hereby representing and warranting your full right and authority to place such order in the manner elected without violating any applicable law, rule, or regulation.
4. Shipping Information. It is our responsibility to ship your accepted order to you at the address you provide when making the order. You will be responsible for all associated shipping & handling charges. While we agree to use reasonable efforts to meet the shipping and delivery dates provided online, we shall not be responsible for any delays in shipments.
5. Returns. We reserve the right in our sole discretion to accept or deny any return requests from you. The acceptance of any one return does not mean we will accept any return in the future. If we decide to accept a return, such return must comply with the following: (i) the items(s) were not designated as non-returnable; (ii) your return is made within fifteen (15) days of delivery; (iii) the merchandise is returned in the same condition as originally received by you; and (iv) the goods are not obsolete or discontinued. Once the goods are received by us, we will refund your purchase price, less the original shipping & handling charges. We reserve the right to also charge you a 25% re-stocking fee for returns. If we accept your return request, all returns must be made pursuant to the specific return procedure specifically set forth in communications by us upon your return request. You bear the risk of loss or damage during shipment (other than when returning non-conforming merchandise) and as such, you are advised to obtain appropriate insurance. Your refund will be credited back to the same payment method used to make the applicable purchase.
7. Representations & Warranties (R&Ws); Disclaimers; Limitations on Liability.
(a) Buyer’s R&Ws. You represent and warrant to us as follows: (i) that you have the right to enter any transaction contemplated for hereby without violating these Terms, any applicable law, rule, or regulation, and/or any agreement with, or rights of, any third party; (ii) that you will use the goods and services provided hereunder exactly as authorized and never in any way that would violate any applicable law or third party right of any kind; and (iii) that you are buying goods or services from the Site for solely your own use, and not for resale or export.
(b) Goods and Services AS IS. We represent and warrant that all orders and the Goods and Services are sold “as is" with no warranty as to completeness, accuracy, or potency and no other express warranty is made with respect to the Goods and Services. If any model or sample was shown to you, that model or sample was used merely to illustrate the general type and quality of the Goods and Services and not to represent that the Goods and Services would necessarily conform to the model or sample. What you are purchasing is represented by the SKU and due to the nature of variants, the potency of any given product may vary by batch. THE GOODS AND SERVICES SOLD UNDER THESE TERMS ARE PURCHASED BY YOU “AS IS” AND “WITH ALL FAULTS” AND WE DO NOT PROVIDE ANY WARRANTY FOR THE GOODS AND SERVICES, INCLUDING BUT NOT LIMITED TO THE IMLIED WARRANTIES THAT THE GOODS ARE OF MERCHANTABLE QUALITY OR THAT THE GOODS CAN BE USED FOR ANY PARTICULAR PURPOSE.
(c) Limitation on Warranties. Subject to applicable law and the terms hereof, we make no express or implied warranty whatsoever with respect to the goods or services purchased through the Site, including without limitation any: (i) warranty of merchantability; (ii) warranty of fitness for a particular purpose; (iii) warranty of title; or (iv) warranty against infringement of intellectual property rights of a third party, whether express or implied by law, course of dealing, course of performance, usage or trade, or otherwise.
(d) Sole and Exclusive Remedies/Liability Cap. SUBJECT TO APPLICABLE LAW, THE REMEDIES SET FORTH ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES, AND OUR ENTIRE OBLIGATION AND LIABILITY. SUBJECT TO APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL COMPANY’S OBLIGATION OR LIABILITY HEREUNDER EXCEED THE PURCHASE PRICE YOU PAID ON THE SITE FOR ANY GOODS OR SERVICES. ADDITIONALLY, SUBJECT TO APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY LOSS OF USE, DATA, BUSINESS, GOODWILL, REPUTATION, OR REVENUE, AND/OR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR OTHER DIRECT OR INDIRECT LOSSES OF ANY KIND.
8. Third Party Beneficiaries. These Terms are for your sole benefit and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
9. Force Majeure. Company shall not be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including without limitation, war, weather, strikes, floods, lockouts, fires, acts of God, government action or directive, terrorism, and/or delivery, vendor, supplier, or other third party delays, non-performance, or failures of any kind.
10. Assignment. Company may assign or otherwise transfer any or all of its rights or obligations hereunder, in whole or in part, to any third party in its sole discretion. You may not assign any of your rights or delegate any of your duties hereunder at any time without our prior written consent in each instance, and any attempt to do so shall be null and void.
11. Partial Invalidity. In the event that any part or portion of these Terms is deemed to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect.
12. Governing Law, Dispute Resolution, and Binding Arbitration.
(a) Governing Law. These Terms shall be governed by the laws of the State of California without regard to its conflict of laws principles. Any legal or equitable claim of any nature that arising hereunder will be filed and maintained in the state or federal courts in the State of California in the County of San Francisco. The prevailing party in any claim arising under this Agreement will be entitled to recover its attorneys’ fees and costs of litigation as to that part of the litigation for which it prevailed.
(b) Dispute Resolution and Binding Arbitration. PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH COMPANY AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
(i) BINDING ARBITRATION:
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and Company agree (a) to waive your and Company’s respective rights to have any and all Disputes arising from or related to these Terms, or the Services, content or Products, resolved in a court, and (b) to waive your and Company’s respective rights to a jury trial. Instead, you and Company agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
No Class Arbitrations, Class Actions or Representative Actions: You and Company agree that any Dispute arising out of or related to these Terms, the Services or Products sold on the Services is personal to you and Company and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action, or any other type of representative proceeding.
(ii) Notice; Informal Dispute Resolution
You and Company agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Company shall be sent by certified mail or courier to Kiva Brands, Inc., Attn: General Counsel, 2300 North Loop Rd., Alameda, California 94502. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Company account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically. If you and Company cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Company may, as appropriate and in accordance with this Section 12, commence an arbitration proceeding or, to the extent specifically provided for above, file a claim in court.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, YOU AND COMPANY AGREE THAT ANY ARBITRABLE DISPUTE MUST BE COMMENCED OR FILED BY YOU OR COMPANY WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND COMPANY WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).
You and Company agree that any arbitration will be conducted confidentially in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. The parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California.
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the Terms by writing to: Kiva Brands, Inc., Attn: Legal Department, 2300 North Loop Rd., Alameda, California 94502. The opt out notice must include your full name and email address and clearly indicate your intent to opt out of binding arbitration.
13. No Waivers. Our failure to enforce any of our rights hereunder will not constitute a waiver of our right to make such enforcement in the future, subject to applicable law.
14. Notices. We may provide notices hereunder to you by: (i) email; (ii) regular mail; or (iii) posting them on the Site. You shall be responsible for ensuring that you have provided us with your current email and mailing addresses. You can contact us at any time by personal delivery, overnight courier, or registered or certified mail to: Kiva Sales and Service, Inc., 2300 North Loop Rd., Alameda, CA 94502.