eCommerce Terms of Sale
Updated: Oct 1, 2019
Knowde Terms and Conditions of Sale
These Terms of Sale provide that all disputes between you and a seller, or between you and Knowde will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Section 13 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Knowde.
2. Modification of these Terms of Sale. We reserve the right, at our discretion, to change these Terms of Sale on a going-forward basis at any time. Please check these Terms of Sale periodically for changes. If a change to these Terms of Sale materially modifies your rights or obligations, you will be required to accept the modified Terms of Sale in order to make any additional purchases going forward. Material modifications are effective upon your acceptance of the modified Terms of Sale. Immaterial modifications are effective upon publication. Disputes arising under these Terms of Sale will be resolved in accordance with the version of these Terms of Sale that was in effect at the time of the transaction which is the subject matter of the dispute.
3. Separate Transactions. Each individual purchase of Products by you will constitute a separate and independent transaction. If you do not pay as required or otherwise breach any one of these Terms of Sale, we can recover for each shipment without reference to any other.
4. Title and Risk of Loss. Title and Risk of Loss transfer to you when Products are delivered to the carrier. We recommend that you carefully inspect all shipments on receipt for any damage that may have occurred during shipment and require the freight carrier to note it on all copies of the delivery paperwork so that you may pursue a claim with the carrier.
5. Acceptance, Claims and Time Limits for Claims. We recommend you carefully inspect all shipments, including packaging and labels, on delivery for damage, errors or mistakes (for example, the wrong Product or wrong quantity being shipped). If the product is damaged or any error has occurred, please contact us immediately, by e-mailing firstname.lastname@example.org, with the following information: (i) your name and address, (ii) the order number, (iii) a brief description of the problem or issue, and (iv) the best way to contract you. For any defect or issue that was not visible on delivery (for example a defect that could only be discovered through quality testing or further processing), we require that you contact us and file a claim as stated above within thirty days of the Product being delivered. IF YOU DO NOT GIVE US NOTICE OF ANY VISIBLE DEFECT OR ERROR WITHIN TWO BUSINESS DAYS OF DELIVERY, OR GIVE US NOTICE OF A HIDDEN DEFECT OR ISSUE WITHIN THIRTY DAYS OF DELIVERY, THAT WILL BE DEEMED AN ABSOLUTE ACCEPTANCE OF THE PRODUCT(S) AND UNCONDITIONAL WAIVER BY YOU OF ANY SUCH CLAIM.
6. Limited Right of Return. You may not return any Product except in the following limited instances: (i) the Product does not conform with the manufacturer’s published specifications at the time of delivery to the carrier, or (ii) a mistake occurred with the order (for example, sent the wrong Product or amount). To be eligible to return a Product you must have made a timely claim under section 5 above. For allowed returns, Knowde will confirm all shipping and handling requirements prior to an allowed return; do not ship Products to Knowde or the manufacturer until you have received written approval and direction from Knowde.
7. Disclaimers; Limited Warranties
The seller warrants Products conform to the manufacturer’s published specifications at the time of delivery. OTHER THAN THE FORGOING LIMITED WARRANTY, SELLER MAKES NO WARRANTIES WHATSOEVER CONCERNING PRODUCTS. KNOWDE MAKES NO WARRANTIES WHATSOEVER CONCERNING PRODUCTS. THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES EXPRESS OR IMPLIED. SELLER AND KNOWDE EXPRESSLY EXCLUDE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
AS A COURTESY, KNOWDE AND SELLERS MAY PROVIDE INFORMATION REGARDING PRODUCTS. YOU CONFIRM THAT YOU ARE A SOPHISTICATED AND KNOWLEDGEABLE CONSUMER OF THE PRODUCTS, AND AS SUCH AGREE THAT NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM A SELLER OR KNOWDE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE KNOWDE PLATFORM WILL CREATE ANY WARRANTY OF ANY KIND REGARDING ANY PRODUCT THAT IS NOT EXPRESSLY STATED IN THESE TERMS OF SALE. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE PRODUCTS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE KNOWDE PLATFORM. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY THAT RESULTS FROM THE USE OF THE SERVICE OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION, BUT YOU AGREE THAT THE FOREGOING TERMS WILL BE ENFORCED TO THE FULLEST EXTENT POSSIBLE.
8. Limitation of Liability
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU, BUT YOU AGREE THAT THE FOREGOING TERMS WILL BE ENFORCED TO THE FULLEST EXTENT POSSIBLE.
EACH PROVISION OF THESE TERMS OF SALE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS OF SALE. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9. Product Stewardship and Compliance with Laws and Regulations. The Products, and their storage, handling, and use require a high level of knowledge and sophistication and may be subject to a variety of laws, regulations, and best industry practices. You acknowledge that there may be hazards related to your possession and use of Products and you assume all liability that might result from, or be in any way connected with, your possession, transportation, storage, handling, resale or use of Products or their suitability for any particular use. You acknowledge that we have provided you with Safety Data Sheet(s) (“SDS”), and if for any reason we have not you agree to immediately contact us and request the appropriate SDS. If you have any doubts about your ability to safely and legally possess, transport, store, handle, resell or use Products then you should not purchase them. You agree that Products will be used, handled, stored, transported and disposed of in such a manner as is necessary for the safety and protection of persons, property and the environment, and in accordance with the manufacturer’s recommendations, best industry practices and applicable laws and regulations. You agree to instruct your employees about, and to make certain that they know and understand, all information, processes and procedures necessary to enable them to comply with the requirements of these Terms of Sale and you will make certain that they are adequately trained in the use, handling, storage, transportation and disposition of the Products. You agree to deliver the most recent edition of Product literature, including SDSs, to your employees and customers and to keep a record of that delivery and relevant training.
11. Payment terms and KnowdePay. Unless you have been approved for credit through our KnowdePay service, you must pay at the time you make an order. Sales taxes where applicable (local, state or federal) will be added to the invoice price. Sales Tax Exemption Certificates must be emailed to us at email@example.com. KnowdePay is the service under which you may apply for and obtain credit terms from us, and the following terms and conditions apply to KnowdePay:
A. To be eligible for KnowdePay, you must first fill out our application materials and provide us with any additional information we may request. You further agree to provide Knowde with such additional information regarding your business and financial condition as Knowde may request from time to time. Knowde is not obliged, under any circumstance, to offer credit terms to anyone, or to continue them; we may refuse or discontinue credit for any reason, or no reason, at our sole discretion.
B. Knowde may assign its rights under this agreement with respect to amounts owed by you under the KnowdePay service to a third party or designate a third party as the initial provider of credit under KnowdePay, in each case at our sole discretion (any such third party, an “Assignee”). In the event of any such assignment, you agree to pay to such Assignee (and not to Knowde) any and all amounts as and when due hereunder. You further agree to follow the instructions of any such Assignee with respect to any amounts due and payable hereunder whether or not Knowde has provided you with notice of any assignment. Knowde hereby agrees that any amounts paid by you to any Assignee hereunder shall be, and shall be deemed to be, a payment hereunder and that, following any such payment, no additional amounts shall be due to Knowde hereunder on account of any amounts paid as such amounts shall be fully discharged and satisfied in full. Any such Assignee is an intended third party beneficiary of this section and this section may not be modified as to such Assignee without its written consent.
C. If you are delinquent in making a payment, we may, in our sole discretion, require you to pay in advance for any further orders, suspend deliveries, and/or charge you a fee at a rate of two percent (2%) per month or the maximum allowed under applicable law, if less, on all overdue charges. Knowde or the Assignee may pursue collection through the terms of these Terms of Sale, or through any other legal means (including a lawsuit or use of a third party collection agency) in our or their sole discretion. You will be responsible for all costs of collection, including Knowde or the Assignee’s legal fees. Any amounts charged under this section will be due and payable upon demand.
D. We may, in our sole discretion, delay or refuse to accept an order from you, or ship an accepted order, if we reasonably believe you are in breach of any provision of these Terms of Sale, or if in our opinion the delivery or use of Product may result in an environmental health or safety danger or hazard. If, in our opinion, your financial responsibility may be impaired, we may, without notice to you, suspend credit, cancel any unfilled orders, and/or decline to make further deliveries until we have received pre-payment or satisfactory security for the payment. You agree, upon request, to provide us with your most recent financial statements and/or any other evidence we may request regarding your corporate and financial standing.
13. Dispute Resolution and Arbitration.
A. Generally. In the interest of resolving disputes between you and a seller and/or Knowde in the most expedient and cost effective manner, you, the sellers and Knowde agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND KNOWDE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
B. Exceptions. Despite the provisions of Section 13A, nothing in these Terms of Sale will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; (d) in the case of Knowde or its Assignee, pursue the collection of unpaid debts, as stated in Section 11, or (d) to file suit in a court of law to address an intellectual property infringement claim.
C. Arbitrator. Any arbitration between you and a seller and/or Knowde will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Knowde.
D. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Knowde’s address for Notice is: Cesium, Inc. dba Knowde, 333 W San Carlos Street, Suite 600, San Jose, CA 95110. Knowde will accept notices on behalf of a seller. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you, the seller and/or Knowde may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Knowde must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Knowde will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Knowde in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
E. Fees. If you commence arbitration in accordance with these Terms, Knowde will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Knowde for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
F. No Class Actions. YOU, SELLER AND KNOWDE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you, seller and Knowde each agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
G. Modifications to this Arbitration Provision. If Knowde makes any future change to this arbitration provision, other than a change to Knowde’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Knowde’s address for Notice, in which case your account with Knowde will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
H. Enforceability. If Section 13 is found to be unenforceable in whole or in part, then the entirety of this Section 19 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 12 will govern any action arising out of or related to these Terms.
15. Export Controls. All Products offered for sale by Knowde are offered for our customer’s use, and may not be repackaged, resold or otherwise distributed without our prior written permission. You agree to comply with all applicable export laws and regulations with respect to the Products and not to transship or resell Product to any person or entity who is a “Prohibited Person” as defined by the Office of Foreign Assets Control.
17. Contact Information. The Service is offered by Cesium, Inc. dba Knowde, located at 333 W San Carlos Street, Suite 600, San Jose, CA 95110. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.