Terms And Conditions
PRODUCT PURCHASE TERMS AND CONDITIONS OF SALE
PLEASE READ THESE PRODUCT PURCHASE TERMS AND CONDITIONS OF SALE (THE “AGREEMENT”) VERY CAREFULLY. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (“YOU”) AND KALE BROS, KIPS DEHYDRATED FOODS LLC (“THE COMPANY”). BY CLICKING ON THE “I ACCEPT” BUTTON AND COMPLETING YOUR ORDER OF PRODUCTS (THE “PRODUCTS”) FROM THE COMPANY’S WEBSITE (THE “SITE”), YOU ARE AGREEING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE “I ACCEPT” BUTTON AND ABANDON YOUR PURCHASE OF PRODUCTS.
2. Prices and Payment. You hereby authorize the Company to charge the full purchase price for the Products and the shipping and handling charges and taxes due as more fully set forth on the checkout page on the Site (“Checkout”) to the credit card, bank, PayPal or other account you provided in your order of Products at Checkout (your “Order”). You assume all responsibility for notifying the Company of changes in credit card numbers and/or expiration dates or in any change in status of the applicable bank, PayPal or other account, as the case may be. If your form of payment is denied when charged or if an ACH or other debit to the depositary account is rejected, the Company may charge and collect from you a “bad account” fee of twenty-five ($25.00) dollars for any declined or rejected transaction. You shall additionally be responsible for and shall immediately pay the Company, on demand, any payments that are made to the Company that are subject to a subsequent reversal. Questions regarding charges must be brought to the attention of the Company’s billing department within 60 days after the Company has charged the credit card, bank, PayPal or other account you provided at Checkout. Charges beyond 60 days old are not subject to review, reversal or refund. YOU HEREBY REPRESENT AND WARRANT THAT (I) THE CREDIT CARD, DEBIT CARD OR BANK OR OTHER PAYMENT ACCOUNT INFORMATION SUPPLIED TO THE COMPANY IS TRUE, CORRECT AND COMPLETE, (II) AMOUNTS DUE FROM YOU WILL BE HONORED BY YOUR BANK OR CREDIT CARD COMPANY, AND (III) YOU SHALL PAY FOR ALL YOUR PURCHASES ON THE SITE AT THE PRICES IN EFFECT ON THE SITE AT THE TIME INCURRED. You remain solely responsible to pay for Product purchases following declination of your credit card, ACH transaction, eCheck or otherwise. The Company’s prices do not include any foreign, federal, state or local sales, use or other similar taxes or duties or other fees (including any import or export fees), however designated, levied against the sale, delivery or use of the Products. You are solely responsible for and shall pay all such taxes, duties and fees, provided, however, that you shall not be liable for any taxes based on the Company’s net income. You hereby authorize the Company to charge such taxes due in addition to the amounts set forth above. All payments shall be made in U.S. dollars. You also agree to pay or reimburse all fees and expenses reasonably incurred by the Company in collecting any amounts due under this Agreement, including, but not limited to, all reasonable attorneys’ fees associated with the collection.
3. Acceptance of Your Order; and Cancellation. [Your Order is subject to approval and acceptance by the Company. The Company will accept or reject your Order within [(24) hours] after the Company’s receipt. The Company will accept or reject an Order by sending written notice to you by email to the email address entered by you at Checkout, or by shipping Products to you.] [You may not cancel an Order without the Company’s prior written approval. In the event that the Company agrees to permit you to cancel an Order or part of an Order, you shall be liable for a cancellation fee equal to [_______].]
4. Packing and Delivery. All Products ordered by you shall be packed in accordance with the Company’s standard practices. The Company will not accept and cannot accommodate any special requests for custom containers, packing, crating, boxing or bundling. The Company will use commercially reasonable efforts to deliver Products by the delivery date set forth in the Company’s Order acknowledgement sent to the email address entered by you at Checkout. The Company may make partial shipments, and your credit card, bank, PayPal or other account you provided at Checkout will be separately charged at the time of each shipment, and you may not reject partial shipments. The Company will not be liable for any failure to ship complete orders or for any shipment delay. We will ship Products to the address you enter in the Order using the shipping method you select. All Products will be delivered EXW and you shall bear the risk of loss upon our delivery of the Products to the common carrier at our shipping location. Any claims for loss, shortage or damage to the Products arising following delivery by the Company to the common carrier should be submitted to the common carrier.
5. Limited Warranty; Disclaimer of Other Warranties. The Company makes the following limited warranty (the “Limited Warranty”) to you concerning the Products:
a. What is covered by this Limited Warranty: The Company warrants that the Products shall conform to their applicable FDA food label, and be fit for human consumption for 12 months from production date (as applicable, the “Warranty Period”).
b. What is Not Covered by this Limited Warranty: The Limited Warranty shall not apply: (i) if the Product is not stored in accordance with the instructions included on each Product ; (ii) if Products are damaged by factors or circumstances outside of the Company’s control (including but not limited to accident, fire, electrical surges and water exposure) and acts of God, or (iii) any defects or failures in the Products that arise from negligence or misuse by you.
c. What are Your Responsibilities: In the event that you discover within the Warranty Period a failure of the Products to conform to the Limited Warranty set forth above you must send to the Company at the following address [Insert address for product returns]: (1) the allegedly non-conforming Product, (2) proof of purchase, including the original date of purchase, (3) a brief description of the problem, and (4) the address for the delivery of replacement Product, in the event that the Company concludes that the Product does not conform to the Limited Warranty. Should shipping costs be required to return the Product, the Company shall be responsible for those shipping costs. Please contact the Company at the [Insert email address] to obtain a return material authorization number and to obtain instructions on how to obtain or print a return label in order to return the Product to the Company. For more information, please send an email to the Company at [Insert email address].
d. What are the Company Responsibilities: The Company’s sole obligation, and your exclusive remedy, for any breach of the foregoing Limited Warranty shall be, at the Company’s option, to replace any defective Product with a conforming Product, or, to refund any monies paid by you to the Company for such non-conforming Product.
e. DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4, THE COMPANY AND ITS LICENSORS AND SUPPLIERS MAKE NO OTHER EXPRESS OR IMPLIED WARRANTIES AND TO THE EXTENT PERMITTED BY LAW, THE COMPANY AND ITS LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM AND EXCLUDE ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING DUE TO COURSE OF CONDUCT OR USAGE OF TRADE. SOME STATES DO NOT PERMIT THE DISCLAIMER OF WARRANTIES IN CERTAIN CIRCUMSTANCES AND SO PORTIONS OF THE FOREGOING MAY NOT APPLY TO YOU.
6. Limited Liability. IN NO EVENT SHALL THE COMPANY’S LIABILITY TO YOU EXCEED THE AGGREGATE AMOUNTS PAID BY YOU TO THE COMPANY FOR THE PRODUCTS AND SERVICES THAT ARE THE SUBJECT OF THE ORDER UNDER WHICH THE CLAIM AROSE. NEITHER THE COMPANY NOR ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY (A) SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR EXTRAORDINARY DAMAGES, OR (B) COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS IN THIS SECTION SHALL APPLY (A) NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND (C) REGARDLESS OF THE FORM OF ACTION, WHETHER BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER THEORY. SOME STATES DO NOT PERMIT THE LIMITATION/EXCLUSION OF DAMAGES IN CERTAIN CIRCUMSTANCES AND SO PORTIONS OF THE FOREGOING MAY NOT APPLY TO YOU.
8. General. The Federal Arbitration Act, Illinois state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern this Agreement. Foreign laws do not apply. The United Nations Convention for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect. Except for your payment obligations, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, war, riots, orders of government, strikes, failure of the Internet or shortages of materials. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by duly authorized representatives of the parties. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy. You will comply with all applicable laws in performing this Agreement and in connection with the Products.