Terms of Use

Overview

Welcome to Kiva Brands, Inc. (“KIVA”)! These Terms of Use (“Terms”) govern your use of the KIVA website, https://kivaconfections.com/ (the “Site”), any KIVA mobile application (the “App” and together with the Site, the “Platform”), and any features, content, products and other services offered by KIVA (collectively, the “Services”). NOTE THAT SECTION 24 OF THESE TERMS CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.

Please read these Terms carefully. By visiting our Platform and/or by using the Services, you agree to be bound by these Terms, including those additional terms and conditions and policies referenced herein and/or available by hyperlink, including the Privacy Policy. We reserve the right to update, change, or replace any part of these Terms by posting updates and/or changes here. You are encouraged to review these Terms each time you use the Services because your use of the Services after the posting of changes will constitute your acceptance of the changes.

The Platform and Services are owned by KIVA, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. We grant you a personal, limited, nontransferable, nonexclusive license to access and use the Platform and Services. We reserve the right, in our sole discretion and without notice to you, to revise the products and offers available on the Services and to change, suspend or discontinue any aspect of the Services and we will not be liable to you or to any third party for doing so.

You agree that by agreeing to these Terms, you are entering into a binding contract with KIVA.

Section 1 - Use of Services

You may use the Services only for your own noncommercial personal use and in compliance with these Terms. You are responsible for your own communications, including the transmission, uploading or posting of information to the Services and are responsible for the consequences of such communications. Any other use of the Services requires the prior written consent of KIVA. You may not otherwise copy, modify, or distribute the contents of the Services without the prior written consent of KIVA. You may not modify, publish, transmit, participate in the transfer of, sell, create derivative works from, or in any way exploit any of the content found on the Services, in whole or in part.

You may not use the Services for any of the following purposes:

Posting, communicating or transmitting any material that infringes on any intellectual property, publicity, or privacy right of another person or entity;
Engaging in any harassing, threatening, intimidating, predatory, or stalking conduct;
Posting any information which is untrue, inaccurate, or not your own;
Using or attempting to use another user’s account without authorization from such user and KIVA;
Using the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services or that could damage, disable, overburden, or impair the functioning of the Site, the App, and Services in any manner;
Engaging in conduct that would constitute a criminal offense or give rise to civil liability or otherwise violate any law or regulation; and
Attempting to interfere in any way with the Platform, KIVA’s network security, or attempting to use the Services to gain unauthorized access to any other computer system.

Section 2 - Services Not for Minors

The Services are not targeted toward or intended for use by anyone under the age of 21. By agreeing to these Terms of Service, you represent that you (a) are 21 years of age or older, (b) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services, (c) do not have more than one KIVA account, and (d) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.

Section 3 - Accuracy, Completeness, and Timeliness of Information

We are not responsible if information made available on the Services is not accurate, complete, or current.

All descriptions, images, references, features, content, specifications, products, and prices of products and services described or depicted on the Services are subject to change at any time without notice. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) regarding the receipt, possession, use, and sale of any item purchased from the Services.

Section 6 - Additional Terms and Conditions; Risk of Loss; Return Policy

A. Additional Terms & Conditions

You agree that additional terms and conditions may apply to specific products, orders, or use of certain portions of the Services (“Additional Terms”), which Additional Terms are made part of these Terms by reference. If there is a conflict between these Terms and the Additional Terms, the Additional Terms shall control.

C. Return Policy

Your experience is important to us so if we can make it right, we will. Because of the nature of cannabis edibles, we do not accept returns of any item once it has been delivered. However, if you are unhappy with a particular item please notify us within 21 days of receiving your order send us an email at feedback@kivaconfections.com and we will do our best to remedy the issue.

Section 7 - Optional Tools or Links

We may provide you with access to third-party tools or links over which we neither monitor nor have any control or input. You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations, or conditions of any kind and without any endorsement. Any use of optional tools or links is entirely at your own risk and discretion, and we shall have no liability whatsoever arising from or relating to your use of such optional third-party tools.

Section 8 - User Comments, Feedback, and other Submissions

If you send to us user-generated content, such as photos, videos, creative ideas, suggestions, proposals, plans, or other materials (exclusive of your personally identifiable information), whether online (via our website or any of our social media accounts (Facebook, Instagram, etc), by email, postal mail, or otherwise (collectively, “Comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use those Comments in any medium. We are and shall be under no obligation (1) to maintain any Comments in confidence; (2) to pay compensation for any Comments; or (3) to respond to any Comments.

We may, but have no obligation to, monitor, edit, or remove content that we determine in our sole discretion is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or violates any party’s intellectual property or these Terms of Use.

You agree that your Comments will not violate any right of any third party, including copyright, trademark, privacy, personality, or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive, or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Services or any related website. You are responsible for all Comments you contribute in any manner to the Services, and you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it. You are responsible for all your activity in connection with the Services.

Section 9 - Your Consent to Receive Emails and Other Communications

You expressly consent to receive and accept communications from KIVA, including via e-mail, push notifications, SMS text messages, or other comparable means at any of the e-mail addresses and/or telephone numbers provided. You agree that the foregoing authorized communications may be initiated for any transactional, customer service, advertising, marketing, promotional, account administration or other purposes. If you consent to receive marketing related text messages, YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE “MARKETING TEXT MESSAGES AS A CONDITION OF PURCHASING ANY GOODS OR SERVICES. IF YOU WISH TO OPT OUT OF MARKETING EMAILS OR TEXT MESSAGES FROM US, YOU AGREE TO OPT OUT BY FOLLOWING ANY UNSUBSCRIBE INSTRUCTIONS PROVIDED TO YOU IN THOSE COMMUNICATIONS.

Standard text messaging and data charges will apply to phone calls and text messages we may send. PLEASE BE ADVISED THAT IF YOU OPT OUT OF MARKETING COMMUNICATIONS, KIVA MAY STILL SEND YOU COMMUNICATIONS ABOUT YOUR ACCOUNT OR ANY TRANSACTIONS.

Section 10 - Copyright Infringement

If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to the KIVA’s Designated Agent, whose contact details are listed below:

A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
Identification of works or materials being infringed;
Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that KIVA is capable of finding and verifying its existence;
Contact information about the notifier including address, telephone number, and email address;
A statement that the notifier has a good faith belief that the material identified is not authorized by the copyright owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.

Upon receipt of a proper notice of copyright infringement, we reserve the right to:

remove or disable access to the infringing material;
notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
terminate such content provider's access to the Services if he or she is a repeat offender.

Please contact KIVA's Designated Agent at the following address:

Kiva Brands, Inc.

Attn: Legal Counsel

2300 North Loop Drive

Alameda, CA 94502

Section 11 - Personal Information

Your submission of personal information through the Services is governed by our Privacy Policy.

Section 12 – Promotions and Offers

From time to time, we will provide promotions or offers for our customers (“Promotions”). Such promotions may be subject to separate terms and conditions. In addition, for some products and services exclusions may apply. All Promotions are valid through their stated expiration dates, may be limited to specific quantities, are valid while supplies last and are limited to quantities on hand. You agree to abide by the terms and conditions of any Promotion and acknowledge that circumvention of the terms and conditions of any such Promotion an unauthorized or fraudulent act. You will be liable for damages caused by any such unauthorized or fraudulent act, and KIVA reserves the right to charge the payment method in your account an amount equal to such damages. All Promotions are subject to cancellation at any time.

Section 13 - Disclaimer – No Professional Advice

Any information provided by us regarding the products or otherwise (e.g. product descriptions, promotional videos, blog posts, or instructions) is for informational purposes only. You should not take any action based upon any information contained on the Services. Use of the Services is not meant to serve as a substitute for professional advice. You should read and strictly follow all product labels, packaging inserts, and instructions and all manufacturer directions and warnings and seek independent professional advice when appropriate.

YOU SHOULD ALWAYS SPEAK WITH A HEALTHCARE PROFESSIONAL BEFORE INGESTING CANNABIS FOR MEDICAL PURPOSES. KIVA does not warrant and shall have no liability for information provided in the Services regarding recommendations concerning cannabis for medical purposes for any and all health purposes. This information is provided solely as a guideline to be used when discussing a program with a healthcare professional. The claims made about specific nutrients or products have not been evaluated by the FDA. Ingesting cannabis for medical purposes is not intended to diagnose, treat, cure or prevent disease.

Furthermore, you expressly acknowledge and agree that any and all statements concerning cannabis products, accessories, or any other items sold or made available through the Platform, have not been evaluated, approved, or endorsed by the FDA or any other regulatory agency. All such statements are provided for informational purposes only and should not be relied upon for any medical advice, health care, or similar treatment. If you suffer from any medical condition or illness, or if you are pregnant, nursing, and/or taking medications of any kind, you must consult with a physician before using any cannabis products, accessories, or any other items sold or made available through the Platform.

Section 15 - Prohibited Uses

In addition to other prohibitions as set forth in the Terms, you are prohibited from using the Services or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any relevant regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; (k) to interfere with or circumvent the security features of the Services or any related website, other websites, or the Internet; or (l) in a manner inconsistent with, or in violation of, these Terms. We reserve the right to terminate your use of the Services or any related website for any reason, in our sole discretion and with or without notice to you.

Section 16 - Disclaimer of Warranties; Limitation of Liability

KIVA attempts to display information on the Services as accurately as possible. However, KIVA does not guarantee or make any representations or warranties concerning any content contained in or accessed on the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. We make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services. THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION (i) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT (ii) ANY WARRANTIES THAT ARISE FROM TRADE USAGE, OR (iii) THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

EXCEPT IN CASES OF WILLFUL MISCONDUCT AND RECKLESS CONDUCT ON THE PART OF KIVA, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL KIVA BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR PRODUCTS, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM KIVA, OR FROM EVENTS BEYOND THE KIVA’S REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO KIVA’S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF KIVA ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR PRODUCTS EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS OR EXCEED THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU TO KIVA IN CONNECTION WITH THE SERVICES IN THE PRECEDING TWELVE (12) MONTH PERIOD. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE KIVA’S SOLE LIABILITY AND OBLIGATION, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, AND LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE KIVA FROM AND AGAINST, AND COVENANT NOT TO SUE, FOR ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS, THE SERVICES AND THE PRODUCTS. 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.”

THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY PRODUCTS YOU PURCHASE FROM US, OR FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS, OR RECKLESS MISCONDUCT.

Section 17 - Indemnification

You agree to indemnify and hold KIVA and its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses, and expenses (including attorneys’ fees) arising from or in any way related to any third-party claims relating to (a) your illegal use of the Services (including any actions taken by a third party using your account), (b) your violation of these Terms, (c) your posting of any defamatory or infringing content on the Site or App, and (d) your violation of any third-party rights in connection with your use of the Services. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

Section 18 - Assignment

You may not assign, delegate, or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without KIVA’s prior written consent. We may transfer, assign, or delegate these Terms, and our Privacy Policy, along with our rights and obligations herein, and thereto without consent.

Section 19 - Termination

The obligations and liabilities incurred prior to the termination of your account or use of our Services shall survive the termination of these Terms for all purposes. Account termination may result in deletion of any content associated with your account, so keep that in mind before you decide to terminate your use of the Services.

If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we may terminate your account and access to the Services at any time without notice and you will remain liable for all amounts due up to and including the date of termination.

Section 20 – Dispute Resolution and Arbitration

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH KIVA AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

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 KIVA agree (a) to waive your and KIVA’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 KIVA’s respective rights to a jury trial. Instead, you and KIVA 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 KIVA 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 KIVA 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.

Notice; Informal Dispute Resolution

You and KIVA 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 KIVA shall be sent by certified mail or courier to Kiva Brands, Inc., Attn: General Counsel, 2300 North Loop Drive, Alameda, CA 94502. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your KIVA 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 KIVA 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 KIVA may, as appropriate and in accordance with this Section, 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 KIVA AGREE THAT ANY ARBITRABLE DISPUTE MUST BE COMMENCED OR FILED BY YOU OR KIVA WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND KIVA WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).

You and KIVA 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 Drive, Alameda, CA 94502. The opt out notice must include your full name and email address and clearly indicate your intent to opt out of binding arbitration.

Section 21 - Choice of Law and Venue

These Terms and your relationship with KIVA are governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Any dispute arising from or relating to the subject matter of these Terms or to your relationship with KIVA shall be finally settled in San Francisco County, California, in English. You and KIVA agree that these Terms affect interstate commerce and that the enforceability of this Section shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.

Section 22 - Miscellaneous

The failure of either you or KIVA to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.

Section 23 - Contact Information

Questions about the Terms of Services should be sent to us at:

Kiva Brands, Inc.

2300 North Loop Drive

Alameda, CA 94502

Attn: Account Services