Effective July 23, 2019
These terms contain provisions that require the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, and also limit the remedies available to you in the event of a dispute. See below for full details.
NO MEDICAL ADVICE
You understand and agree that nothing on the Website or provided through the Website is intended as or should be construed as medical advice. Kiito is not a medical organization and cannot give you medical advice or any diagnosis. You are urged and advised to seek the advice of a physician before beginning any dietary or any weight loss regimen. While the Products are generally recognized as safe for consumption, you may be pregnant, nursing, taking medication or have a health condition that conflicts with the Products; as such, you should consult with your primary care physician before using any of the Products.
By accessing and/or using the Website, including by doing so after accessing this Agreement, you represent and warrant that you are at least 18 years old, and are otherwise legally qualified to enter into and form contracts under applicable law. If you are using the Website on behalf of a company, you further represent and warrant that you are authorized to act and enter into contracts on behalf of that company.
PAYMENTS & SUBSCRIPTION PLANS
The terms of this Section 4 govern purchases of Products and/or other goods and services made by you through the Website. Note that, while Kiito Products may be available for purchase through third-party websites or storefronts, such purchases are governed by the payment and refund policies of the third parties operating such websites and storefronts.
Payments & Refunds
For purchases made by you through the Website, all transmissions of payment information between you and Kiito are secured with Internet-standard TLS (also known as HTTPS) encryption. We collect your name, address, and payment information to process your order.
Due to the nature of the Products, once your order is confirmed, ALL SALES ARE FINAL AND THERE ARE NO REFUNDS. Requests for exchanges or replacements of spoiled or damaged product will be handled on a case-by-case basis and at Kiito’s sole discretion.
From time to time, Kiito may offer Products for sale in subscriptions—for example, a subscription plan that enables you to receive and pay for weekly shipment of certain Products—according to the terms of the Subscription Plan selected by you at the time of purchase (your “Subscription Plan”). If you chose to enroll in a Subscription Plan, you understand and agree that, in addition to your first purchase, your credit or debit card on file will be charged for additional subscription periods (e.g., once per week) without obtaining further permission or confirmation from you. In other words, Subscription Plans renew automatically unless cancelled in advance of the next payment period by you. Please pay attention to the payment terms and disclosures provided during the order process for your Subscription Plan.
YOUR USE OF THE WEBSITE
Subject to your compliance with these Terms of Service, Kiito grants you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to access the Website, and to use the Website. No part of the Website, including the Website, may be reproduced, duplicated, copied, modified, sold, resold, distributed, transmitted, or otherwise exploited for any commercial purpose without the prior express written consent of Kiito. All rights not expressly granted in this Agreement are reserved by Kiito. Without limitation, this Agreement grants you no rights to the intellectual property of Kiito or any other party, except as expressly stated in this Agreement. The license granted in this section is conditioned on your compliance with this Agreement. Your rights under this section will immediately terminate if, in the sole judgment of Kiito, you have breached any provision of this Agreement.
To access and use certain parts of the Website, you may be asked to create a user account ("Account"), and to provide information that personally identifies you. You represent and warrant that all user information you provide in connection with your Account and your use of the Website is current, complete, and accurate, and you agree that you will update that information as necessary to maintain its completeness and accuracy by updating your personal Profile. You are entirely responsible for maintaining the confidentiality of your account credentials, including any username or password. You agree to notify Kiito immediately of any unauthorized use of your Account. Kiito reserves the right to refuse service, terminate your account, terminate your right to use the Website, remove or edit your user content, or cancel your orders in its sole discretion.
From time to time, and at its sole discretion, Kiito may authorize you and other users to post reviews, comments, ratings, and other content (“Your Content”) to the Website. With respect to your content, you are prohibited from posting any Content that infringes on the intellectual property rights of others, is illegal, obscene, threatening, defamatory, invades the privacy of others (e.g., doxing), contains a commercial solicitation or other form of “spam” messages, or otherwise violates the Prohibited Content section below. You agree to indemnify, defend, and hold harmless Kiito for and against all claims asserted by third parties that arise out of or relate to Your Content. Kiito reserves the right to remove or edit Your Content but has no obligation to do so and does not conduct such reviews as a matter of practice.
You are always the owner of Your Content; however, Kiito requires the following license from you in order to be able to display Your Content on the Website: You grant to Kiito a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works from, distribute and display Your Content throughout the world in any media now existing or in the future created.
Reviews and Comments
With respect to any Product reviews or comments provided by you to Kiito as part of Your Content, you represent and warrant that such reviews or comments are true and accurately represent your experience as a bona fide user of the Product. You understand and agree that, pursuant to the license granted above, Kiito will have the right to republish all or part of your reviews and comments on the Website, Kiito’s social media accounts, advertising, and other media as Kiito deems fit.
Kiito imposes certain restrictions on your use of the Website. The following are expressly prohibited: (a) providing false, misleading, or inaccurate information to Kiito or any other person in connection with the Website; (b) impersonating, or otherwise misrepresenting affiliation, connection, or association with, any person or entity; (c) modifying or changing the placement and location of any advertisement posted through the Website; (d) harvesting or otherwise collecting information about users, including email addresses and phone numbers; (e) without express written permission from Kiito, using or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to harvest or otherwise collect information from the Website for any use, including without limitation use on Third-Party Websites; (f) accessing content or data not intended for you, or logging into a server or account that you are not authorized to access; (g) attempting to probe, scan, or test the vulnerability of the Website, or any associated system or network, or breaching security or authentication measures without proper authorization; (h) interfering or attempt to interfere with the use of the Website by any other user, host, or network, including (without limitation) by submitting malware or exploiting software vulnerabilities; (i) forging, modifying, or falsifying any network packet or protocol header or metadata in any connection with, or transmission to, the Website (for example, SMTP email headers, HTTP headers, or Internet Protocol packet headers); (j) while using the Website, using ad-blocking or other content-blocking software, browser extensions, or built-in browser options designed to hide, block, or prevent the proper display of online advertising; (k) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by the Company Parties in providing the Website, including without limitation any fraudulent effort to modify software or any other technological mechanism for measuring the number of impressions generated by individual content and/or the overall Service to determine and/or audit advertising revenues and payments, if applicable; (l) creating additional accounts to promote your (or another's) business, or causing others to do so; or (m) paying anyone for interactions on the Website.
Assumption of Risk; Release
You knowingly and freely assume all risk when using the Website and Products. You, on behalf of yourself, your personal representatives, and your heirs, voluntarily agree to release, waive, discharge, hold harmless, defend, and indemnify Kiito and its owners, officers, directors, employees, agents, affiliates, consultants, representatives, sublicensees, successors, and assigns (collectively, the "Company Parties") from any and all claims, actions, or losses for bodily injury, property damage, wrongful death, emotional distress, loss of privacy, or other damages or harm, whether to you or to third parties, that may result from your use of the Website or Products.
Third-Party Content on the Website
Opinions, advice, statements, or other information made available through the Website by third parties, such as other users, are those of their respective authors, and should not necessarily be relied upon. Those authors are solely responsible for their content. Kiito does not guarantee the accuracy, completeness, or usefulness of any third-party information accessible on or through the Website and will not be responsible for any loss or damage resulting from your reliance on third-party information.
The Website may be linked with the websites of third parties ("Third-Party Websites"), some of whom may have established relationships with Kiito and some of whom may not. Kiito does not have control over the content and performance of Third-Party Websites. Kiito has not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on Third-Party Websites. Accordingly, Kiito does not represent, warrant, or endorse any Third-Party Websites, or the accuracy, currency, content, fitness, lawfulness, or quality of the information, material, goods, or services available through Third-Party Websites.
Kiito, the Kiito logo, the Website domain, the Product names, and all content and other materials available through the Website (collectively, the "Company IP") are trademarks, copyrights, and intellectual property of and owned by Kiito or Kitto’s licensors and suppliers. Neither your use of the Website nor this Agreement grant you any right, title, or interest in, or any license to reproduce or otherwise use, the Company IP. You agree that any goodwill in the Company IP generated as a result of your use of the Website will inure to the benefit of Kiito, and you agree to assign, and do assign, all such goodwill to Kiito. You shall not at any time, nor shall you assist others to, challenge Kiito’s right, title, or interest in, or the validity of, the Company IP.
DISCLAIMERS, LIMITATION OF LIABILITY
To the fullest extent permitted by law, Kiito, on behalf of itself and its licensors and suppliers, expressly disclaims any and all warranties, express or implied, regarding the Website or Products, arising by operation of law or otherwise, including without limitation any and all implied warranties of merchantability, fitness for a particular purpose, non-infringement, no encumbrance, or title, in addition to any warranties arising from a course of dealing, usage, or trade practice. Neither Kiito nor its licensors or suppliers warrants that the Website or Products will meet your requirements, or that the operation of the Website will be uninterrupted or error-free. Kiito disclaims all implied liability for damages arising out of the furnishing of the Products or the Website pursuant to this Agreement, including without limitation, mistakes, omissions, interruptions, delays, tortious conduct, errors, representations, or other defects, whether caused by acts of commission or omission, or any other damage occurring. Kiito shall not be liable for any indirect, incidental, special, consequential, or punitive damages (including without limitation damages for lost profits or lost revenues), whether caused by the acts or omissions of Kiito, Company Parties, or Kiito users, or their agents or representatives.
Limitation of Liability
To the fullest extent permitted by law, in no event shall Kiito or its licensors or suppliers be liable to you for any claims arising from your use of the Products or Website, including without limitation for special, incidental, or consequential damages, lost profits, lost data or confidential or other information, loss of privacy, costs of procurement of substitute goods or services, failure to meet any duty including without limitation of good faith or of reasonable care, negligence, or otherwise, regardless of the foreseeability of those damages or of any advice or notice given to Kiito or its licensors and suppliers arising out of or in connection with your use of the Products or Service. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action. You agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between Kiito and you. The Website would not be provided without such limitations.
Application of Disclaimers
The above disclaimers, waivers, and limitations do not in any way limit any other disclaimer of warranties or any other limitation of liability in any other agreement between you and Kiito or between you and any of Kiito’s licensors and suppliers. Some jurisdictions may not allow the exclusion of certain implied warranties or the limitation of certain damages, so some of the above disclaimers, waivers, and limitations of liability may not apply to you. Kiito’s licensors and suppliers are intended third-party beneficiaries of these disclaimers, waivers, and limitations. No advice or information, whether oral or written, obtained by you through the Website or otherwise shall alter any of the disclaimers or limitations stated in this section.
Without limiting any indemnification provision of this Agreement, you agree to defend, indemnify, and hold harmless Kiito and the Company Parties (collectively, the "Indemnitees") from and against any and all claims, actions, demands, causes of action, and other proceedings (collectively, "Claims"), including but not limited to legal costs and attorneys’ fees, arising out of or relating to: (i) your breach of this Agreement, including without limitation any representation or warranty contained in this Agreement; (ii) your provision to Kiito or any of the Indemnitees of Your Content or other information or data; (iii) your violation or alleged violation of any foreign or domestic, international, federal, state, or local law or regulation; or (iv) your violation or alleged violation of any third party's copyrights, trademarks, or other intellectual property or proprietary rights. The Indemnitees each have the individual right, but not the obligation, to participate through counsel of their choice in any defense by you of any Claim. You may not settle any Claim without the prior written consent of the concerned Company Parties.
If you and Kiito cannot resolve a dispute or other Claim through negotiations, either party may elect to have the dispute or Claim finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other(s).
You acknowledge that without this provision, you would have the right to sue in court with a jury trial or to participate in a class action.
The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"), as modified by this Agreement, available at the AAA website www.adr.org or by calling the AAA at 1-800-778-7879. Except as otherwise provided for in this Agreement, Kiito will pay the AAA filing, administration, and arbitrator fees. If, however, the arbitrator finds that either the substance of your claim or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then you will pay the arbitrator fees, in addition to any amount that exceeds the filing fees. In that case, you also agree to reimburse Kiito for all payments disbursed that are your obligation to reimburse under the AAA Rules. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to resolve, except that issues relating to the enforceability of the arbitration provision are for a Court of Competent Jurisdiction to resolve. The location of the arbitration will be Los Angeles, California, but upon the agreement of the parties, the arbitration may be conducted through document submission, through telephone, or online.
Restrictions Against Joinder of Claims
You and Kiito agree that any arbitration shall be limited to each Claim individually. You and Kiito agree that each may only bring Claims against the other in your or Kiito’s individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
This agreement to arbitrate will not preclude you or Kiito from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a Court of Competent Jurisdiction. Furthermore, this agreement to arbitrate will not preclude you or Kiito from applying to a Court of Competent Jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary. "Court of Competent Jurisdiction" means any federal or state court: (1) that has jurisdiction over the subject matter; and (2) that is located in Los Angeles, California.
Governing Law; Venue for any Judicial Proceeding
This Agreement shall be treated as though this Agreement were executed and performed in Los Angeles, California, and shall be governed by and construed in accordance with the laws of California without regard to its conflict of law principles. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
Subject to and without waiving the arbitration agreement above, the proper venue for any judicial action arising out of, relating to, or in connection with this Agreement will be the state and federal courts located in Los Angeles, California. The parties stipulate to, and agree to waive any objection to, the personal jurisdiction and venue of such courts, and further expressly submit to extraterritorial service of process.
Entire Agreement. This Agreement constitutes the entire agreement between Kiito and you concerning your use of the Website.
Partial Invalidity. Should any part of this Agreement be declared invalid, void, or unenforceable by a Court of Competent Jurisdiction, such decision shall not affect the validity of any remaining portion of this Agreement, which shall remain in full force and effect, and the parties acknowledge and agree that they would have executed the remaining portion without including the part so declared by a Court of Competent Jurisdiction to be invalid, void, or unenforceable.
Amendments. This Agreement may only be modified by a written amendment signed by an authorized executive of Kiito, or by the unilateral amendment of this Agreement by Kiito along with the posting by Kiito of that amended version.
No Waiver. A waiver by either party of any term or condition of this Agreement, or any breach, in any one instance, will not waive that term or condition or any later breach.
Assignment. This Agreement and all of your rights and obligations under it will not be assignable or transferable by you without the prior written consent of Kiito. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.
Independent Contractors. You and Kiito are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.
No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement, with the following exceptions: the Company Parties, Indemnitees, and Kiito’s licensors and suppliers (to the extent expressly stated in this Agreement).
Headings. The headings in this Agreement are for convenience only, and shall have no legal or contractual effect.