Terms & Conditions
The website located at KIWAMIGREENS.COM is owned and operated by Suntory Holdings Limited. KIWAMIGREENS.COM is an online store selling official Suntory Kiwami Greens products.
By entering or otherwise using our website, including our mobile applications (the “Website”), you agree to and accept these terms and conditions. You also agree to and accept our Notice of Privacy Policies, which describes how we use the information that we collect from you or you provide to us and is incorporated into these terms and conditions by reference. Please read the terms and conditions and Notice of Privacy Policies carefully as you are agreeing to be bound by them.
TOGETHER THESE TERMS AND CONDITIONS AND THE NOTICE OF PRIVACY PRACTICES CONSTITUTE YOUR SERVICE AGREEMENT (“AGREEMENT”) WITH US. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF OUR WEBSITE, ANY MEMBERSHIP YOU MAY ESTABLISH ON THE WEBSITE, AND YOUR PURCHASE OR USE OF ANY PRODUCTS OR SERVICES OFFERED ON THE WEBSITE. BY ACCESSING AND/OR USING THE WEBSITE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THE AGREEMENT AND TO ABIDE BY ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN. YOU MAY NOT ACCESS OR USE THIS WEBSITE, BECOME A KIWAMIGREENS.COM MEMBER, OR ACCEPT THIS AGREEMENT UNLESS YOU ARE AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL PROVISIONS OF THIS AGREEMENT, PLEASE DO NOT ACCESS AND/OR USE THE WEBSITE, SIGN UP FOR A MEMBERSHIP, OR PURCHASE PRODUCTS OR SERVICES THROUGH THE WEBSITE.
1.1 Account Creation. In order to use certain features of the Website (e.g., purchasing products and services from the Website (referred to collectively as “Products” herein)), you can either become a member by registering for an account with KIWAMIGREENS.COM (“KIWAMIGREENS.COM Account”) and providing certain information about yourself as prompted by the Website registration form or you can log in as a guest. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of and update as necessary such information; and (c) your use of the Website or the use by any third party who has authority to access or use the Website on your behalf does not violate any applicable law or regulation or the terms of this Agreement. You may cancel your KIWAMIGREENS.COM Account for any reason by contacting Customer Support at 1-888-786-8679. We may suspend or terminate your KIWAMIGREENS.COM Account in accordance with Section 11.
1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your KIWAMIGREENS.COM Account login information. You are fully responsible for all activities that are associated with your KIWAMIGREENS.COM Account (including but not limited to any purchases, use of the Website, or correspondence from your KIWAMIGREENS.COM Account to us). You agree to immediately notify us of any unauthorized use or suspected unauthorized use of your KIWAMIGREENS.COM Account or any other breach of security. When you provide us with such notice, we will suspend or otherwise secure your KIWAMIGREENS.COM Account to prevent future unauthorized activity.
2. Terms of Sale
2.1 Products and Pricing. All Products listed on the Website are subject to change, as is Product information, pricing, and availability. We reserve the right, at any time, to modify, suspend, or discontinue any Website feature or the sale of any Product with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of any Website feature or Product. In the event a Product is listed at an incorrect price or with incorrect information, we shall have the right, prior to the acceptance of your order (as described in Section 2.3 below), to decline or cancel any such orders, whether or not the order has been confirmed and/or your credit card account charged. If your credit card has already been charged for the order and we cancel your order, we will issue a credit to your credit card account in the amount of the charge.
Unless otherwise noted, the strike-through price displayed for Products on our Website is based on the suggested retail price for the product. Because we sell our Products over the internet nationwide, the strike-through price may or may not represent the prevailing price at any particular time or in every State or local community, and we make no promises about the reliability or accuracy of any such information. For items that we offer as a set, the strike-through price is based on the total of all the suggested retail prices for each item in the set.
2.2 Payment Terms. For each Product you order on the Website, you agree to pay the price applicable for the Product as of the time you submitted your order (“Product Price”), the delivery fees for the delivery service you select (“Delivery Fees”), and any applicable Taxes (defined below). We will automatically bill your credit card account submitted as part of the order process for such amounts, and you hereby authorize us to do so. You will be solely responsible for payment of all taxes (other than taxes directly imposed on our business activity in a state, such as income taxes), fees, duties, and other governmental charges, and any related penalties and interest, arising from the Product purchase (collectively, “Taxes”) not withheld by us. All payments are non-refundable (except as expressly set forth in Section 2.1 and 2.3).
2.3 Orders. Your receipt of an order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept, decline, or cancel your order (in whole or in part) for any reason. We may require additional verifications or information before accepting any order. Your order is not accepted until it is shipped (or a portion of the order is shipped). If your payment method cannot be verified, is invalid, or is otherwise not acceptable, your order may be suspended or cancelled. Notwithstanding the foregoing, you agree that, if we cancel all or a part of your order, your sole and exclusive remedy is that we (a) issue a credit to your credit card account in the amount charged for the cancelled portion (if your credit card has already been charged for the order) or (b) not charge your credit card account for the cancelled portion of the order.
2.4 The Subscription Contract. We offer subscription plans for our Products. Monthly subscriptions (“Monthly Subscriptions”) are available in 1 box, 2 boxes, or 3 boxes for thirty (30) days. We will discount ten (10) percent from the total order amount regardless of the number of orders.
2.5 Automatic Renewal Terms. With respect of subscriptions subject to automatic renewal, you agree that we may submit periodic charges (e.g., monthly) to your chosen payment method without further authorization from you, until you provide prior notice that you wish to terminate this authorization. You agree that such notice will not affect charges submitted before we reasonably could act.
2.6 Automatic Delivery Terms. The Product(s) you select for Monthly Subscriptions will be automatically sent to you at the frequency of thirty (30) days and your payment method will automatically be charged monthly until you cancel your Monthly Subscriptions. If you do not update your selection for a particular month ten (10) days prior to the next delivery date, we will send you the same shipment as we sent the previous month, subject to availability.
2.7 Cancellation Policy. You will not be able to cancel the first shipment. To cancel your Monthly Subscription from the second shipment, please call our Customer Support at 1-888-786-8679. You can also cancel or modify your next delivery arrangement by accessing KIWAMIGREENS.COM My Account.
2.8 Shipping Policy. Any delivery dates we provide are estimates. We reserve the right to make deliveries in installments. We will send you an email when your order has shipped and you may review your order and shipping information on your KIWAMIGREENS.COM My Account page. We ship within the U.S. (including Alaska, Hawaii, and Puerto Rico) only.
2.9 Deliveries/Errors. You are responsible for inspecting all Products you receive for any damage or other issues upon delivery. In addition, you are solely responsible for determining the state of the Products you receive. You should always inspect your delivery to confirm that you received the correct Product and that the Product is suitable for consumption. If you have any reason to believe that any Product in your delivery is not suitable for consumption, call our Customer Support within ten (10) days after you receive your order. We attempt to be as accurate as possible; however, we do not warrant that all Product descriptions, photographs, pricing, or other information on the Website are accurate, complete, current, or error-free. All weights and size dimensions are approximate.
2.10 Return policy. Please Note: All orders are final. No returns and no exchanges, except for defective Products. If you receive any defective Products, please call our Customer Support for an exchange within ten (10) days of delivery. Depending on the circumstances, we may, in our sole discretion, replace the defective Products at our expense, provide you a full or partial refund of the purchase price for the Products, or provide you with credits that will be applied to future deliveries under your subscription, if any.
2.11 Undeliverable Handling Fee. If the delivery shipping address is incorrect and the product is returned to us, we may charge an undeliverable handling fee.
3.1 License. Subject to the terms of this Agreement, you are hereby granted a limited, non-transferable, non-exclusive, non-sublicensable license to access and make personal use of the shopping services and features provided on the Website. This license does not include any right of resale or commercial use of the Website features or any materials, designs, text, images or other content in the Website (collectively, “Content”), or the right to access or use the Website for any of the restricted purposes set forth in Section 3.2. We may terminate this license at any time for any reason.
3.2 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sublicense, reproduce, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Website or its Content without our express written consent; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Website; (c) you shall not access the Website in order to build a similar or competitive service, or to download, copy or collect content or account information for the benefit of another merchant; (d) except as expressly stated herein, no part of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means without our express written consent; (e) you must not delete or change the copyright, trademark and other proprietary notices in the Website or its Content; and (f) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information or Content of the Website without our express written consent. Any future release, update, or other addition to functionality of the Website shall be subject to the terms of this Agreement.
3.3 Modification. We reserve the right, at any time, to modify, suspend, or discontinue the Website or any part thereof with or without notice. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Website or any part thereof.
3.4 Ownership. You acknowledge that all intellectual property rights in the Website and its Content, including rights to copyrighted material, patents, trademarks, service marks, and trade secrets (but excluding your User Content) (collectively, “Intellectual Property”) are owned by us or our licensors, and neither the limited license granted in Section 3.1, nor our provision of the Website under this Agreement, shall transfer to you or any third party any rights, title or interest in or to such Intellectual Property. We reserve all rights not granted in this Agreement.
3.5 Trademarks. You may not use any metatags or other “hidden text” utilizing “Kiwami Greens” or “Suntory” or any other name, trademark or product or service name consisting of or containing “Kiwami Greens” or “Suntory” or confusingly similar thereto without our prior written permission. The look and feel of the Website and Products, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute our service mark, trademark or trade dress and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Website or on the Products are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder.
4. User Content
4.1 User Content. “User Content” of a Website user means any and all information and content that such user submits or makes available to the Website by any means, including through social media (e.g., Facebook, Twitter), or uses with the Website (e.g., a user profile or a feedback submission). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance by others on its accuracy, completeness or usefulness, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby affirm, represent, and warrant that (i) you own, or have the necessary licenses, rights, and/or consents to use your User Content with the Website as described herein and (ii) your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by us. Because you alone are responsible for your User Content (and not us), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. We are not obligated to backup any User Content, we make no representation that we will do so, and you agree that we may delete User Content at any time.
4.2 License. By submitting or making available your User Content or using it with the Website, you automatically grant, and you represent and warrant that you have the right to grant, to us a perpetual, irrevocable, non-exclusive, transferable, royalty-free and fully paid up, worldwide license to reproduce, modify, adapt, publish, translate, distribute, transmit, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use or exploit your User Content, in whole or in part, and to grant sublicenses of the foregoing, including for the purposes of including your User Content in the Website, third party social media platforms or marketing initiatives. In connection with the forgoing, you grant us the perpetual right and permission to use your name, likeness, voice and persona (collectively, “Information”), including for publicity or promotional purposes. You agree to irrevocably waive (and cause to be waived) any claims and assertions of publicity or moral rights, or attribution with respect to your User Content and your Information.
4.3 Feedback. We will treat any feedback, communications, or suggestions you provide to us (collectively, “Feedback”) as non-confidential and non-proprietary. Thus, in the absence of a written agreement with us to the contrary, you agree that you will not submit to us any information or ideas that you consider to be confidential or proprietary. Feedback shall become our sole property. We shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and its derivatives and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
5. Acceptable Use Policy
The following Sections 5.1 and 5.2 set forth our “Acceptable Use Policy”:
5.1 You agree not to use the Website to collect, upload, transmit, display, or distribute any User Content (a) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) that is unlawful, harassing, abusive, tortious, threatening, harmful, abusive, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (c) in violation of any law, regulation, or obligations or restrictions imposed by any third party.
5.2 In addition, you agree not to commercially exploit the Website or use it to: (a) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (b) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (c) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (d) interfere with or disrupt servers or networks connected to the Website or violate the regulations, policies or procedures of such networks; (e) attempt to gain unauthorized access to the Website, other computer systems or networks connected to or used together with the Website, through password mining or other means; or (f) harass or interfere with another user’s use and enjoyment of the Website.
5.3 Although we have no obligation to screen, edit or monitor User Content, we reserve the right to review any User Content, investigate, and/or take appropriate action against you, in our sole discretion, if you violate the Acceptable Use Policy or any other provision of this Agreement, including removing or modifying your User Content, terminating your KIWAMIGREENS.COM Account in accordance with Section 11, and/or reporting you to law enforcement authorities. We may also remove or modify your User Content if it, in our sole judgment, violates the rights of, harms, or threatens the safety of any other person, or creates liability for us or any other person. In order to cooperate with legitimate governmental requests, subpoenas or court orders, or to protect our business and members, we may access and disclose any information we consider necessary or appropriate, including your KIWAMIGREENS.COM Account username and password, IP address and traffic information, usage history, and your User Content.
6. Third Party Sites, Third Party Content, and Other Users’ Content
6.1 Third Party Sites. The Website may contain links to, or advertisements for, third party websites (collectively, “Third Party Sites”) (for example, social media websites such as Facebook, Twitter, or Pinterest). Such Third Party Sites are not under our control and we are not responsible for any Third Party Sites. We provide links to these Third Party Sites only as a convenience and do not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites. You agree that you use all Third Party Sites at your own risk. When you link to a Third Party Site, the applicable service provider’s terms and policies, including privacy and data gathering practices govern. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any Third Party Site.
6.2 Third Party Content and Other Users’ Content. We may display content, advertisements, and promotions from third parties through the Website or in shipments with Products (collectively, “Third Party Content”). In addition, each Website user is solely responsible for any and all of its User Content. We do not control, endorse, or adopt any User Content or Third Party Content. You acknowledge and agree that we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content or Third Party Content, and we assume no responsibility for any User Content or Third Party Content. Your interactions with other Website users or any third party providing Third Party Content are solely between you and such user or third party. You agree that we will not be responsible for any loss or damage incurred as a result of any such interactions. If there is a dispute between you and any Website user or you and any third party providing Third Party Content, we are under no obligation to become involved.
7.1 General Disclaimer. THE WEBSITE, CONTENT, SERVICES AND PRODUCTS ARE PROVIDED “AS-IS” AND AS AVAILABLE AND WE EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IF APPLICABLE LAW REQUIRES IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS, THEN ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF PURCHASE.
SUNTORY HOLDINGS LIMITED DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THIS WEBSITE AND NEITHER SUNTORY HOLDINGS LIMITED NOR ITS AFFILIATES (COLLECTIVELY, “SUNTORY PARTIES”) WILL BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES. IF A SUPPLIER PROVIDES AN EXPRESS WARRANTY, THAT WARRANTY IS BETWEEN YOU AND THE SUPPLIER AND NOT US. NOTWITHSTANDING THE FOREGOING, IF A SUPPLIER OF A PRODUCT PROVIDES A WARRANTY FOR THE PRODUCT AND ALLOWS US TO PASS IT THROUGH TO YOU, WE WILL PASS IT THROUGH TO YOU.
7.2 Disclaimer Regarding Nutritional Information. Statements made and Products sold by us have not been evaluated by the U.S. FDA and are not intended to treat, cure, or prevent any disease. The information presented on this Website is intended to provide general nutrition and wellness information. Please note that such information is not intended to be construed as or be a substitute for professional medical advice, diagnosis, or treatment and you should always seek the advice of a physician or other qualified health provider if you have any questions regarding a medical condition. You should not rely on our Website for such information and you should never disregard professional medical advice or delay in seeking it because of anything on or associated with our Website or our Products. We do not recommend or endorse any specific tests, physicians, products, procedures, opinions, course of treatment or therapy, or other information on or associated with the Website.
8. Limitation on Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY SUNTORY PARTY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM YOUR USE OF THE WEBSITE, PRODUCTS, OR THIRD PARTY SITES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. ACCESS TO, AND USE OF, THE WEBSITE, PRODUCTS AND THIRD PARTY SITES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY U.S. DOLLARS ($50) OR (B) AMOUNTS YOU PAID US IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. WE AGREE THAT ANY CLAIM BETWEEN US MUST BE BROUGHT WITHIN TWO (2) YEARS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE SUNTORY PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH SUNTORY PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE THAT ARE EITHER DIRECTLY OR INDIRECTLY RELATED TO OR ARISE OUT OF THESE TERMS AND/OR ANY INTERACTIONS WITH OR CONDUCT OF OTHER WEBSITE USERS OR THIRD PARTY WEBSITES. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 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.”
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY PRODUCTS YOU PURCHASE FROM US, FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT, OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
You agree to indemnify, defend (subject to the below) and hold harmless the Suntory Parties, our representatives, officers, employees, agents, and successors, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) your use of the Website or Products, (ii) your User Content, or (iii) your violation of this Agreement. You agree to promptly notify us of any third party claims, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense or settlement of these claims. You agree not to settle any matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
You agree that any dispute or claim in connection with, arising out of or relating in any way to any purchase or use of any Product or use of the Website (a “Dispute”) will be resolved by final and binding arbitration rather than in court You agree that the U.S. Federal Arbitration Act and U.S. federal arbitration law apply to this agreement to arbitrate and any arbitration conducted thereunder, to the exclusion of any state or municipal law of arbitration.
You must first give us an opportunity to resolve your claim amicably by sending a written description of your claim to KIWAMIGREENS.COM, attn.: Legal, 879 West 190th Street, Suite 1050, Gardena, CA 90248. We each agree to negotiate your claim in good faith. If we are unable to resolve the claim within 60 days after we receive this claim description, you may pursue your claim in arbitration.
Either you or we may start arbitration proceedings. Any Dispute will be arbitrated by one neutral arbitrator in accordance with the JAMS Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”), and the arbitration will be administered by JAMS. If the parties do not agree on the arbitrator within 30 days of commencement of the arbitration, then the arbitrator shall be selected in accordance with Rule 15 of the JAMS Rules. The JAMS Rules are available at www.jamsadr.com or by calling 1-800-352-JAMS. The arbitrator must apply the terms of this arbitration agreement, including without limitation, the Class Action Waiver set forth below.
Upon filing of the arbitration request, we will pay all filing, administration, and arbitrator fees for the arbitration proceeding. The arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief. In addition, for claims under $75,000, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys' fees and costs regardless of whether they would have been available in a court.
The place of arbitration shall be New York City, U.S., and the proceedings shall be conducted in the English language.
The award rendered by the arbitrator shall be final and binding. Judgment on the award may be entered and the award may be enforced in any court of competent jurisdiction.
CLASS ACTION WAIVER. WE EACH AGREE THAT ANY PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT, AND TO CERTAIN DISCOVERY AND OTHER PROCEDURES THAT ARE AVAILABLE IN A LAWSUIT. YOU AGREE THAT THE ARBITRATOR HAS NO AUTHORITY TO ORDER CONSOLIDATION OR CLASS ARBITRATION OR TO CONDUCT CLASS-WIDE ARBITRATION PROCEEDINGS, AND IS ONLY AUTHORIZED TO RESOLVE THE INDIVIDUAL DISPUTES BETWEEN YOU AND US ALONE. FURTHER, YOU WILL NOT HAVE THE RIGHT TO CONSOLIDATION OR JOINDER OF INDIVIDUAL DISPUTES OR ARBITRATIONS, TO HAVE ANY DISPUTE ARBITRATED ON A CLASS ACTION BASIS, OR TO PARTICIPATE IN A REPRESENTATIVE CAPACITY OR AS A MEMBER OF ANY CLASS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION.
THE VALIDITY, EFFECT, AND ENFORCEABILITY OF THE FOREGOING CLASS ACTION WAIVER, IF CHALLENGED, ARE TO BE DETERMINED SOLEY AND EXCLUSIVELY BY FEDERAL DISTRICT COURT LOCATED IN NEW YORK STATE OR NEW YORK STATE COURT IN NEW YORK COUNTY AND NOT BY JAMS OR ANY ARBITRATOR.
WITHOUT WAIVING THE RIGHT TO APPEAL SUCH DECISION, SHOULD ANY PORTION OF THE ABOVE CLASS ACTION WAIVER BE STRICKEN FROM THIS AGREEMENT OR DEEMED OTHERWISE INVALID OR UNENFORCEABLE, THEN THIS ENTIRE SECTION 10 (OTHER THAN THIS SENTENCE) SHALL BE STRICKEN FROM THIS AGREEMENT AND INAPPLICABLE, AND ANY AND ALL DISPUTES SHALL PROCEED IN FEDERAL DISTRICT COURT LOCATED IN NEW YORK STATE OR NEW YORK STATE COURT IN NEW YORK COUNTY AND BE DECIDED BY A JUDGE, SITTING WITHOUT A JURY, ACCORDING TO APPLICABLE COURT RULES AND PROCEDURES, AND NOT AS A CLASS ACTION LAWSUIT.
JURY TRIAL WAIVER. If a claim proceeds in court rather than through arbitration, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
11. Term and Termination
Subject to this Section, this Agreement will remain in full force and effect while you use the Website. We may (a) suspend your rights to use the Website (as well as your KIWAMIGREENS.COM Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Website in violation of this Agreement or if we believe you are younger than 18. Upon termination of this Agreement, your KIWAMIGREENS.COM Account and right to access and use the Website will terminate immediately. You understand that any termination of your KIWAMIGREENS.COM Account may involve deletion of any User Content you may have posted. We will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your KIWAMIGREENS.COM Account or deletion of your User Content. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 2.6, 3.2-3.4, 4, 5 and 7-13.
12. Intellectual Property
We respect the intellectual property of others and ask that users of our Website do the same. Except as authorized in Section 3.1 of this Agreement, you are not permitted to access or use any intellectual property in the Website, Content, or Products (including patents, trademarks, and copyrights) without our prior written consent or the consent of any third party that may own such intellectual property. In connection with our Website, Content, or Products, we have adopted and reasonably implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Website who are repeat infringers of intellectual property, including copyrights. If you believe that your work has been copied in a way that constitutes copyright infringement and wish to have the allegedly infringing material removed from our Website, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent (defined below):
- your physical or electronic signature; 2. identification of the copyrighted work(s) that you claim to have been infringed; 3. identification of the material on our services that you claim is infringing and that you request us to remove; 4. sufficient information to permit us to locate such material; 5. your address, telephone number, and e-mail address; 6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and 7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs, and attorneys’ fees incurred by us in connection with the written notification and allegation of copyright infringement.
Our designated Copyright Agent is: KIWAMIGREENS.COM. Attn: Copyright/Legal 879 West 190th Street, Suite 1050, Gardena, CA 90248
13.1 Changes to Terms of Service. This Agreement is subject to occasional revision, and if we make any material changes we will post notice of the changes on our Website. These changes will be effective immediately. Continued use of our Website following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by any revision of these terms and conditions.
13.2 Governing Law. This Agreement shall be governed by the laws of the state of New York, without regard to its conflicts of laws rules.
13.3 Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of the Website and the purchase of any Products on our Website. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without our prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.
14. Offers, Promotions, and Customer Credits
We may from time to time and in our sole discretion make available special offers and promotions to our members, including offers and promotions that provide an opportunity for members to receive store credits, coupons, prizes, or benefits, (for example, referral credits issued to customers for referring others to the Website). Any such offers and promotions will expire on the dates specified in the offer or promotion. Credits, coupons, prizes, or benefits shall specify the terms that apply to their use and redemption and those terms shall apply. Credits, coupons, prizes, and benefits may not be combined with any other offers or promotions. We reserve the right at any time within our discretion, and without prior notice, to discontinue any offer or promotion or to add or change offer and promotion terms or conditions, including changing expiration periods or credit values for existing or future credits. Referral credits cannot accrue until and unless the referred customer completes a purchase on the Website and all other conditions of the relevant promotion have been met.
Credits are only for use on Products available for purchase on the Website and may not be used for the purchase of gift cards or services. Credits are promotional in nature without any exchange of money or value from you. Credits are not transferable to other accounts and as such, credits do not constitute property and you do not have a vested property right or interest in the credits.
We reserve the right to suspend or terminate the account of any user we believe is engaged in fraudulent, illegal, or inappropriate conduct in relation to any offers or promotions, including without limitation, using multiple user accounts or email addresses to meet promotion or offer requirements, using false names, impersonating others, or engaging in any other fraudulent or misleading conduct. You agree to forfeit any credits, coupons, prizes, or benefits as a result of any fraudulent, illegal, or inappropriate conduct. We reserve the right to void any such credits, coupons, prizes or benefits granted if we suspect that these were derived in a fraudulent manner, in a manner that violates this Agreement or the terms of the offer or promotion, or in a manner otherwise not intended by us. In addition, any fraudulent, illegal, or inappropriate conduct in relation to any offers or promotions may subject you to liability for civil and/or criminal penalties under applicable law. If we terminate your account, for any reason, any credit balances in your account will be cancelled, except as prohibited by law. Account balances are determined by us and such determination is final.
Revised on February 14th, 2017
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