STANDARD TERMS AND CONDITIONS OF USE
Effective Date: April 6, 2020
For purposes of these Terms and Conditions:
The term “Kush”, “we”, “us” or “our” shall mean Kush Supply Co. LLC, KushCo Holdings, Inc., and their parent(s), subsidiaries, and affiliates, including without limitation, their directors, officers, employees, and agents.
The term “Site” shall mean the website located at www.kushcommodities.com. The Site is the sole and exclusive property of Kush.
The term “user”, “you” or “your” shall mean any user of the Site (including without limitation their agents, affiliates, successors and permitted assigns) or seller or purchaser of products or services offered through the Site.
The term “Hemp” shall have the meaning set forth in 7 U.S.C. § 1639o(1) and “CBD” shall mean cannabidiol derived from Hemp.
The Site and its marketplace are intended to provide a platform to enable persons who are licensed or authorized, to the extent required by applicable law, to sell Hemp or CBD to other persons or entities who operate through the Site and its marketplace and are licensed or authorized, to the extent required by applicable law, to purchase Hemp or CBD.
UPDATES: Kush reserves the right to modify, add or remove sections, portions or provisions of these Terms and Conditions at any time in its sole discretion. It is your sole responsibility to check our Terms and Conditions for any changes. Use of the Site or our services following any changes will mean that you accept and agree to such changes.
USER ACCOUNT AND SECURITY
You may be required to open an account to use certain features and services offered through the Site. You certify that the any information (including product descriptions, reviews, comments, messages, communications, feedback, submissions, suggestions, questions, data, content, materials and other information) you provide on or through the Site is accurate and complete. It is your sole responsibility to maintain the confidentiality of the information you hold for your account, including without limitation, your password and for any and all activity that occurs using your account. Please notify Kush immediately of any unauthorized use of your account or password, or any other breach of security. You will be held liable for losses incurred by Kush or any other user of or visitor to the Site due to unauthorized use of your account. Kush cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations. Your account may be restricted or terminated for any reason, at Kush’s sole discretion.
LISTINGS; PURCHASES; TERMS AND CONDITIONS
The Site consists of a marketplace where authorized or appropriately licensed users may list, sell, browse, and purchase third party services and products. The availability or promotion of a product or service through the Site does not imply our endorsement of the specific product, service, or the third party provider. In an effort to maintain security and consistency, we vet users that list products on the Site and institute (through third parties or otherwise) quality control measures on products listed on the Site’s marketplace, however, we make no representations whatsoever about any vetting or quality control processes, products or services, or any users.
Please note that additional terms and conditions may apply to certain services and/or features of the Site, all of which terms are made a part of these Terms and Conditions by reference. In the event of a conflict between these Terms and Conditions and the terms posted to a specific portion of the Site or for any services offered by Kush, the supplemental terms shall control with respect to your use of that portion of the Site or the specific service. Kush may modify its services at any time. The materials on the Site or presented by a Kush representative with respect to products and services may potentially be outdated and Kush makes no representation or warranty to update the materials on the Site or materials shared with a user with respect to such products and services.
Pricing or availability errors may occur on the Site or sales materials and are subject to change. The user listings of products and services may include inaccuracies, errors, and materials that violate or conflict with these Terms and Conditions. Additionally, third parties may make unauthorized alterations to the Site. If you become aware of any such alteration, contact us at trading@Kushcommodities.com with a description of such alteration and its location on the Site. Kush also reserves the right, at our sole discretion, to prohibit sales to certain dealers or resellers.
LIMITED WARRANTIES AND LIABILITY
KUSH MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE AND/OR SERVICES PROVIDED BY KUSH, AND ANY PRODUCTS AND/OR SERVICES PROVIDED BY ANY THIRD PARTY, INCLUDING ANY: (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE; OR (D) ANY CHANGES IN APPLICABLE LAW.
YOUR USE OF THE SITE AND THE SERVICES IS AT YOUR OWN RISK. ALL CONTENT, PRODUCTS AND SERVICES PROVIDED ON OR THROUGH THE SITE ARE DELIVERED “AS-IS” AND MAY BE SUBJECT TO CHANGE WITHOUT NOTICE. KUSH DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SITE AND/OR ANY PRODUCTS OR SERVICES OFFERED OR SOLD. YOU ASSUME ALL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY LINKED SITES CONTAINED THEREIN. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KUSH OR THROUGH THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOUR SOLE REMEDY AGAINST KUSH FOR DISSATISFACTION WITH THE SITE OR ANY CONTENT IS TO STOP USING THE SITE OR ANY SUCH CONTENT.
IN NO EVENT SHALL KUSH BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH USE OF THE SITE AND/OR LISTINGS, TRANSACTIONS, THE SALE OR PURCHASE OF PRODUCTS OR SERVICES, OR ANY TRANSFERS RELATED TO SUCH PRODUCTS OR SERVICES, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT KUSH WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL KUSH’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS SITE AND/OR PURCHASE OF PRODUCTS OR SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED $100.00.
COMPLIANCE OF PRODUCTS OR SERVICES
Kush does not represent or warrant that any Content (defined below) or products or services offered by or through the Site or a Kush representative or otherwise are compliant with applicable law, including without limitation, heavy metal rules and regulations (as applicable), specific compliance language, words, phrases, disclaimers or symbols or other requirements and regulations for such products or services. It is recommended that you contact separate and independent counsel to obtain advice with respect to any question, issue or problem, including without limitation, any compliance inquiry. Kush cannot guaranty the current status, accuracy, completeness of any Content, product, or service, or any compliance thereof.
Kush is not responsible for product compatibility with any products and/or services sold to you, including without limitation compatibility, stability, or functionality of the products; therefore, all users seeking to purchase products by or through this Site should perform their own testing on all goods or services. All sellers of products offered herein hereby agree to source and offer the products in accordance with all applicable laws and regulations, including any current or future regulations promulgated by the U.S. Federal Drug Administration (FDA) and U.S. Department of Agriculture (USDA), and using generally accepted industry practices.
You shall indemnify, defend and hold harmless Kush and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers, incurred by the Indemnified Party, relating to or resulting from any claim of a third party or arising out of or occurring in connection with use of this Site and/or any purchase or sale of the products and services offered by or through the Site, including but not limited to: (i) your placement or transmission of any message or information on the Site by you; (ii) your violation of any part of these Terms and Conditions, including without limitation, your representations and warranties; (iii) your violation of any third party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any product you list for sale through the Site, including without limitation related to any product designs, defects, content or quality; or (vi) any other party's access and use of the Site with your email address, password or other appropriate security code.
COMPLIANCE WITH LAW
You hereby represent and warrant that: (i) you are acting in compliance with and shall comply with all applicable laws, regulations, ordinances, by-laws, orders, protocols, codes, guidelines, policies, notices, directions or judicial, arbitral, administrative, ministerial or departmental judgments, or other requirements or guideline published or in force at any time that applies to or is otherwise intended to govern or regulate any person, property, transaction, activity, event or other matter, including any rule, order, judgment, directive or other requirement or guideline issued by any governmental or regulatory authority, including but not limited to FDA, USDA and state permit requirements; (ii) you shall use the products or services provided through the Site in conformance with recognized industry and professional standards; (iii) you have used your own independent skill and expertise in connection with the selection and use of the products or services purchased through the Site; (iv) you possess the skill and expertise in the handling, storage, transportation, treatment, use and disposal of the products or services purchased through the Site; (v) you will ensure that the products you purchase through the Site are safe for your intended use and that the products are handled in a safe and professional manner; and (vi) to the extent applicable, you are an authorized purchaser or seller of the products and/or services sold through the Site. Any user of the Site shall have and maintain in effect all the licenses, permissions, authorizations, consents and permits (the “Requisite Licenses”) that it needs to carry out its obligations to sell or purchase any products or services through the Site or in person. In the event Kush requests any user to provide the Requisite Licenses, said user shall promptly comply with such request.
You shall immediately notify Kush of any change in the status of your legal authorization to possess, transport, and/or deliver Hemp or CBD products, including the expiration, suspension, cancellation, revocation, nonexistence or invalidation of any Hemp or CBD related license to which user or an affiliate thereof is or should be subject under applicable laws, including any state or local laws and/or regulations or administrative guidance issued thereunder. You shall immediately notify Kush of any warnings, orders, penalties and sanctions received from any government regulatory or licensing authority in the United States related to non-compliance with any laws and/or regulations or administrative guidance issued thereunder related to the possession, processing, purchase, or sale, cultivation, transportation, distribution and/or delivery of Hemp or CBD, and any disciplinary actions, inspections, suspensions or cancellations of any related authorization, approval, consent, license or permit held by users or affiliates. If you are a seller, at no time shall you offer for sale, sell, or otherwise transact business in any product that contains “marihuana” (as such term is defined in 21 U.S.C. § 802(16), as amended) or any byproduct thereof.
CHOICE OF LAW, FORM, AND DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. Using or accessing the Site constitutes your acceptance of this arbitration provision. Please read it carefully as it provides that you and Kush will waive any right to file a lawsuit in court or participate in a class action for matters within the terms of the arbitration provision.
You agree that these Terms of Service, as well as use of the Site, or the purchase of any goods or services from Kush (whether through the site or a Kush representative), will be governed by and construed in accordance with the laws of the State of California, without reference to its conflict of law provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California. The application of the United Nations Convention on the International Sale of. Goods is expressly excluded.
You agree that you will not commence any action, litigation or proceeding of any kind whatsoever against Kush in any way arising out of or relating to access to or use of the Site and/or the purchase of any good or services through the Site, a Kush representative or in person, and any dispute, claim or controversy arising out of or relating to such or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by final, binding arbitration in Orange County, California before an arbitrator; provided, however, that each party retains its right to seek injunctive relief under applicable law in a state court located in Orange County, California. The arbitration shall be administered by JAMS pursuant to JAMS' Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. No recovery may be sought or received for damages other than out of pocket expenses, except that the arbitrator shall award the prevailing party, if any as determined by the arbitrator, its reasonable costs, including reasonable attorneys’ fees. Judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction.
You may only bring claims in your individual capacity on your own behalf, and not in any representative capacity or on behalf of any class or purported class, and no arbitration you commence hereunder may be joined with or include any claims by any other persons.
No information concerning an arbitration, beyond the names of the parties, their counsel or the relief requested, may be unilaterally disclosed to a third party by any party, unless required by law. Any documentary or other evidence given by any party or witness in any arbitration shall be treated as confidential by any party whose access to such evidence arises exclusively because of its participation in the arbitration and shall not be disclosed to any third party (other than a witness or expert), except as may be required by law. Any party who commences any judicial proceeding in connection with an arbitration initiated hereunder shall endeavor to have the judicial record of any such proceeding sealed to the extent permitted by law.
Kush reserves the right to and may disclose any information we have about you, if Kush, in its sole and absolute discretion, determines that such disclosure is necessary in connection with any investigation or complaint regarding your use of the Site or any purchase or transfer of products or services through the Site, a Kush representative or in person, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Kush’s rights or property, or the rights or property of users of the Site. Kush reserves the right at all times to disclose any information that Kush, in its sole and absolute discretion, deems necessary to comply with any applicable law, regulation, legal process or governmental or quasi-governmental request.
Kush shall have the right to preserve any communication by you with Kush through the Site or otherwise or any service offered on or through the Site, a Kush representative or in person, and may also disclose such data if required to do so by law or Kush, in its sole and absolute discretion, determines that such preservation or disclosure is reasonably necessary to (1) enforce these Terms and Conditions, (2) comply with any form of legal process, (3) respond to claims that any such data violates the rights of any third-party, or (4) protect the rights, property or personal safety of Kush, its employees, users of or visitors to the Site, and the public.
Kush may in its sole and absolute discretion, without prior notice, terminate any user’s access to the Site or the sale of any Kush products or services. The user also hereby agrees that any violation by you of these Terms and Conditions will constitute an unlawful and unfair business practice, and will cause Kush irreparable harm, for which monetary damages would be inadequate, and you consent to Kush obtaining any injunctive or equitable relief that Kush deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies that Kush may have at law or in equity.
You acknowledge that any and all products or services licensed or sold through the Site, a Kush representative or in person are subject to the customs and export control laws and regulations of the United States of America or the specific state of purchase or sale of the product and/or service and may also be subject to the customs and export laws and regulations of the state in which the products are manufactured and/or received, and you agree to comply with all applicable laws. You agree, represent, and warrant that no products, services or Content will be accessed from, downloaded in, released in, carried to, transferred to, transshipped through, exported to, or re-exported (collectively “Transferred”) to any territory (or national resident thereof), person, entity, or organization to which such products, services or Content could not be Transferred directly from the United States or by a U.S. person without a license, including without limitation to any person on the U.S. Treasury Department’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List.
All content, including but not limited to, text, graphics, interfaces, digital media, photographs, trademarks, logos (collectively, “Content”), including the design and expression, and arrangement of such Content is owned, controlled or licensed by or to Kush and is protected by various intellectual property rights and laws, including trade dress, copyright, patent and trademark laws. Except as expressly provided in these Terms and Conditions, no part of the Site or Content may be copied, replicated, republished, publicly displayed, encoded, transferred or distributed to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without Kush’s express prior written consent.
In connection with the Site, you will not: make available through or in connection with the Site any virus, worm, “Trojan horse”, “Easter egg”, time bomb, spyware, or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment; harvest or collect information about users of the Site; interfere with or disrupt the operation of the Site or the systems, servers, or networks used to make the Site available, including by hacking or defacing any portion of the Site; or violate any requirement, procedure or policy of such servers or networks; restrict or inhibit any other person from using the Site; reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute, or otherwise exploit any portion of (or any use of) the Site except as expressly authorized in these Terms and Conditions, without Kush’s express prior written consent; reverse engineer, decompile, or disassemble any portion of the Site, except where such restriction is expressly prohibited by applicable law; remove any copyright, trademark, or other proprietary rights notice from the Site; frame or mirror any portion of the Site, or otherwise incorporate any portion of the Site into any product or service, unless you obtain Kush’s express prior written consent to do so; systematically download and store any Content; use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather any Content, or reproduce or circumvent the navigational structure or presentation of the Site, without Kush’s express prior written consent; dilute, tarnish or otherwise harm Kush the brand in any manner, including without limitation, through unauthorized use of Content, registering and/or using Kush Commodities, Kush Supply Co., KushCo Holdings, or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Kush domains, trademarks, taglines, promotional campaigns or Content; you will not attempt to do anything, or permit, encourage, assist, or allow any third party to do anything, prohibited or cause to be a violation of these Terms and Conditions.
If any term or provision of these Terms and Conditions are held invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction. Such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms and Conditions to effect the original intent of Kush as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Any failure to insist on or enforce strict performance of these Terms and Conditions shall not be construed as a waiver by Kush of any provision or any right it has to enforce these Terms and Conditions, nor shall any course of conduct between Kush and you or any other party be deemed to modify any provision of these Terms and Conditions. These Terms and Conditions shall not be interpreted or construed to confer any rights or remedies on any third parties.
If you find an error or notice something that does not look quite right on the Site, we would appreciate it if you let us know by contacting us.
Please contact: firstname.lastname@example.org