Terms & Conditions
WEBSITE TERMS OF USE AND SALES TERMS AND CONDITIONS
THE SIS KISS, INC.
Last Updated: February 21, 2022
THESE WEBSITE TERMS OF USE AND SALES TERMS AND CONDITIONS
(“TERMS AND CONDITIONS”) SHALL CONSTITUTE THE ENTIRE AGREEMENT
BY AND BETWEEN THE SIS KISS, INC., AN OHIO CORPORATION, AND/OR ITS
SUBSIDIARIES, AFFILIATES, OR ASSIGNS (“THE SIS KISS”), AND ANY
PERSON, ENTITY, USER, AND/OR USER (EACH, A “USER”) INDIRECTLY OR
DIRECTLY ACCESSING WWW.THESISKISS.COM, ITS CONTENTS, AND ANY
RELATED WEBSITE(S) AND/OR APPLICATION(S) (COLLECTIVELY, THE
“SITE”), AND/OR PURCHASING ANY GOOD OR SERVICE ON OR THROUGH
THIS SITE . THESE TERMS AND CONDITIONS TAKE ABSOLUTE PRECEDENCE
AND PREVALENCE OVER ANY TERMS AND CONDITIONS OF THE USER.
ACCESSING THE SITE AND/OR ANY PURCHASE BY THE USER OF ANY
SERVICES AND/OR GOODS SHALL CONSTITUTE ACKNOWLEDGEMENT AND
ASSENT BY THE USER TO THESE TERMS AND CONDITIONS. THE USER
ACKNOWLEDGES AND AGREES THAT THE USER HAS READ AND
UNDERSTANDS THESE TERMS AND CONDITIONS AND AGREES TO BE
BOUND BY THESE TERMS AND CONDITIONS. IN THE EVENT OF ANY
INCONSISTENCIES BETWEEN ANY UNDERSTANDINGS OR
REPRESENTATIONS, ORAL OR WRITTEN, AND/OR ANY PRIOR OR
CONTEMPORANEOUS AGREEMENTS, INCLUDING, WITHOUT LIMITATION,
ANY PURCHASE AGREEMENT, INVOICE, CREDIT APPLICATION, PURCHASE
ORDER, AGREEMENT, AND/OR ANY DOCUMENT(S) ANCILLARY TO THE
FOREGOING, AND THESE TERMS AND CONDITIONS, THESE TERMS AND
CONDITIONS SHALL CONTROL. THE SIS KISS AND THE USER EXPRESSLY
AGREE THAT THE SIS KISS MAY MODIFY THESE TERMS AND CONDITIONS
FROM TIME TO TIME, AND SUCH MODIFICATIONS SHALL BE BINDING UPON
THE USER AS OF THE DATE OF SUCH MODIFICATIONS. THESE TERMS AND
CONDITIONS EXCLUSIVELY GOVERN THE ACCESS AND/OR USE OF THE
SITE BY USER AND/OR THE SALE BY THE SIS KISS OF ANY AND ALL GOODS
(“GOODS”) AND SERVICES (“SERVICES”) TO THE USER HEREUNDER, ON OR
THOUGH THE SITE (EACH A “TRANSACTION”), AND REPRESENTS THE
ENTIRE AGREEMENT BETWEEN USER AND THE SIS KISS WITH RESPECT
THERETO. NO ADDITION OR MODIFICATION TO THESE TERMS AND
CONDITIONS WILL BE BINDING ON THE SIS KISS UNLESS AGREED TO IN
WRITING SIGNED BY THE SIS KISS. THE SIS KISS EXPRESSLY OBJECTS TO
AND REJECTS OTHER TERMS AND CONDITIONS THAT MAY BE PROPOSED
BY USER IN ANY FORM THAT ARE IN ADDITION TO OR OTHERWISE NOT
CONSISTENT WITH THE TERMS AND CONDITIONS SET FORTH OR
REFERENCED HEREIN.
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1. User Acknowledgements. By accessing the Site, the User acknowledges and agrees to
the following:
a. USER IS FULLY LIABLE FOR ALL CHARGES RELATED TO THE
PURCHASE OF GOODS AND/OR SERVICES.
b. ANY AND ALL DELIVERY DATES FOR GOODS ARE APPROXIMATE.
2. The Site. The Site is the exclusive property of The Sis Kiss. The Site is protected,
without limitation, pursuant to U.S. and foreign intellectual property laws, including,
without limitation, copyright and trademark laws. The Sis Kiss hereby grants the User a
limited, non-sublicensable right to access and make use of the Site. The foregoing right
is hereby granted to the User only to the extent such User’s indirect or direct use of the
Site does not violate these Terms and Conditions. Upon such violation, the foregoing
right of access and use shall terminate immediately and without the need for any action
on the part of The Sis Kiss. The User shall not modify copy, reverse engineer,
decompile, create derivative works, distribute, republish, commercially exploit, or upload
any of the Site and/or the material on the Site without prior, written consent from The Sis
Kiss. No intellectual property or other rights in and to this Site -- other than the limited
right to use set forth above -- are transferred to the User. The Sis Kiss expressly reserves
the right, at any time, to change or discontinue any content or feature of the Site or any
Services or Goods made available through the Site without notice; charge fees in
connection with the use of the Site; modify and/or waive any fees charged in connection
with the Site; and/or offer opportunities to some or all Users. The User expressly agrees
that The Sis Kiss shall not be liable for any such modification, suspension or
discontinuance of the Site or of any Service, content, feature or Goods offered through
the Site.
3. MOBILE APPLICATIONS. The Sis Kiss may make available software to access the
Site via a mobile device (“Mobile Software”). To use the Mobile Software, User must
have a mobile device that is compatible with the Mobile Software. The Sis Kiss does not
warrant that the Mobile Software will be compatible with User’s mobile device. The Sis
Kiss hereby grants User a limited, non-exclusive, non-transferable, revocable license to
use a compiled code copy of the Mobile Software for the account owned or leased solely
by User, for User’s personal use. User may not: (i) modify, disassemble, decompile or
reverse engineer the Mobile Software, except to the extent that such restriction is
expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or
otherwise transfer the Mobile Software to any third party or use the Mobile Software to
provide time sharing or similar Sites for any third party; (iii) make any copies of the
Mobile Software; (iv) remove, circumvent, disable, damage or otherwise interfere with
security-related features of the Mobile Software, features that prevent or restrict use or
copying of any content accessible through the Mobile Software, or features that enforce
limitations on use of the Mobile Software; or (v) delete the copyright and other
proprietary rights notices on the Mobile Software. User acknowledges that The Sis Kiss
may, from time to time, issue upgraded versions of the Mobile Software and may
automatically electronically upgrade the version of the Mobile Software that User uses on
User’s mobile device. User consents to such automatic upgrading on User’s mobile
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device and agrees that the Terms and Conditions will apply to all such upgrades. Any
third-party code that may be incorporated in the Mobile Software is covered by the
applicable open source or third-party license EULA, if any, authorizing use of such code.
The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and
The Sis Kiss or its third-party partners or suppliers retains all right, title, and interest in
the Mobile Software (and any copy thereof). Any attempt by User to transfer any of the
rights, duties or obligations hereunder, except as expressly provided for in the Terms and
Conditions, is void. The Sis Kiss reserves all rights not expressly granted under the
Terms and Conditions. The following applies to any Mobile Software User acquires from
Google Play, https://play.google.com/intl/en_us/about/play-terms.html, and is
incorporated by reference herein. The following applies to any Mobile Software User
acquires from the iTunes Store (“iTunes-Sourced Software”): User acknowledges and
agrees that the Terms and Conditions are solely between The Sis Kiss and User, not
Apple, and that Apple has no responsibility for the iTunes-Sourced Software or content
thereof. User’s use of the iTunes-Sourced Software must comply with the App Store
Terms of Site. User acknowledges that Apple has no obligation whatsoever to furnish any
maintenance and support Sites with respect to the iTunes-Sourced Software. In the event
of any failure of the iTunes-Sourced Software to conform to any applicable warranty,
User may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced
Software to User (to the extent applicable); to the maximum extent permitted by
applicable law, Apple will have no other warranty obligation whatsoever with respect to
the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or
expenses attributable to any failure to conform to any warranty will be solely governed
by the Terms and Conditions and any law applicable to The Sis Kiss. User acknowledges
that Apple is not responsible for addressing any claims of User or any third party relating
to the iTunes-Sourced Software or User’s possession and/or use of the iTunes-Sourced
Software, including, but not limited to: (i) product liability claims; (ii) any claim that the
iTunes-Sourced Software fails to conform to any applicable legal or regulatory
requirement; and (iii) claims arising under consumer protection or similar legislation; and
all such claims are governed solely by the Terms and Conditions and any law applicable
to The Sis Kiss. User acknowledge that, in the event of any third-party claim that the
iTunes-Sourced Software or User’s possession and use of that iTunes-Sourced Software
infringes that third party’s intellectual property rights, The Sis Kiss, not Apple, will be
solely responsible for the investigation, defense, settlement and discharge of any such
intellectual property infringement claim to the extent required by the Terms and
Conditions. User and The Sis Kiss acknowledge and agree that Apple, and Apple’s
subsidiaries, are third party beneficiaries of the Terms and Conditions as it relates to
User’s license of the iTunes-Sourced Software, and that, upon User’s acceptance of the
Terms and Conditions, Apple will have the right (and will be deemed to have accepted
the right) to enforce the Terms and Conditions as relates to User’s license of the iTunes-
Sourced Software against User as a third party beneficiary thereof.
4. SOCIAL NETWORKS. The Site may include features that operate in conjunction with
certain third-party social networking websites that User visits (“Social Network
Features”). While the use of the Social Network Features is governed by the Terms and
Conditions, User’s access and use of third-party social networking websites and the
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services provided through these websites is governed by the terms of service and other
agreements posted on these websites. It is impossible for The Sis Kiss to determine in
each case whether User’s use of the Social Network Features would cause User to violate
or breach the terms of service and/or other agreements posted on these third-party
websites. User understands and acknowledges that use of the Social Network Features
may cause User to violate or breach the terms of service and other agreements posted on
these third-party websites which could result in the termination of User’s account and
ability to access these third-party websites and, in some cases, could give rise to liability
for damages. USER AGREES THAT USER ALONE IS RESPONSIBLE FOR USE OF
THE SOCIAL NETWORK FEATURES AND THAT THE SIS KISS WILL NOT BE
LIABLE TO USER OR ANYONE ELSE FOR USER’S VIOLATION OR BREACH OF
ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM
USER’S USE OF THE SOCIAL NETWORK FEATURES.
5. ADVERTISEMENTS. By registering for and using the Site, User accepts that The Sis
Kiss reserves the right to send User advertisements and offers for other products and
services via in-app messaging, text message and the email address User provides. To opt-
out of all further contact initiated by The Sis Kiss, email at any time at customerservice@thesiskiss.com
6. SITE WARRANTY DISCLAIMERS; LIMITATION OF LIABILITY. THE SIS
KISS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO
THE SITE OR ITS CONTENTS, WHICH ARE PROVIDED ON AN “AS-IS, WHERE-
IS BASIS.” THE SIS KISS DISCLAIMS ANY AND ALL REPRESENTATIONS
AND/OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE WITH
RESPECT TO THE SITE AND ANY WEBSITE WITH WHICH IT IS LINKED. THE
SIS KISS FURTHER DISCLAIMS ANY AND ALL REPRESENTATIONS AND/OR
WARRANTIES THAT THE SITE WILL MEET A USER’S REQUIREMENTS; THE
SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
AND/OR ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED.
THE SIS KISS IS NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL
MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER
ONLINE SYSTEMS, SERVERS, PROVIDERS, COMPUTER EQUIPMENT,
SOFTWARE, FAILURE OF COMMUNICATION ON ACCOUNT OF TECHNICAL
PROBLEMS, OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY
WEBSITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO
USERS OR TO ANY OTHER PERSON’S PROPERTY RELATED TO OR
RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN
CONNECTION WITH THE WEB OR IN CONNECTION WITH THE SITE. THE SIS
KISS ALSO EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS
AND/OR WARRANTIES AS TO WHETHER ANY INFORMATION ACCESSIBLE
VIA THE SITE IS ACCURATE, COMPLETE, OR CURRENT. IT IS THE USER’S
RESPONSIBILITY TO EVALUATE THE ACCURACY AND COMPLETENESS OF
ALL INFORMATION, OPINIONS, AND OTHER MATERIAL ON THE SITE. TO
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THE FULLEST EXTENT PERMITTED BY ALL APPLICABLE LAWS, THE SIS
KISS AND ITS AFFILIATES, SUBSIDIARIES, MANAGERS, MEMBERS,
EMPLOYEES, AGENTS, SUPPLIERS, AND CONTRACTORS SHALL IN NO
EVENT BE LIABLE FOR ANY CLAIMS, CHARGES, DEMANDS, DAMAGES,
LIABILITIES, LOSSES, AND EXPENSES OF WHATEVER NATURE AND
HOWSOEVER ARISING, INCLUDING, WITHOUT LIMITATION, ANY
COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES, LOSS OF USE, LOSS OF DATA, LOSS CAUSED
BY A COMPUTER OR ELECTRONIC VIRUS, LOSS OF INCOME OR PROFIT,
LOSS OF OR DAMAGE TO PROPERTY, CLAIMS OF THIRD PARTIES, OR
OTHER LOSSES OF ANY KIND OR CHARACTER, EVEN IF THE SIS KISS HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES
ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE OR ANY
WEBSITE WITH WHICH IT IS LINKED. THE USER EXPRESSLY ASSUMES
TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR
DATA BACK UP AND VIRUS-CHECKING AS THE USER DEEMS NECESSARY.
7. Site Postings. To the extent that portions of the Site (such as “reviews,” “chat rooms,” or
“bulletin boards”) provide Users an opportunity to post and exchange information, ideas,
and opinions (“Postings”), USER ACKNOWLEDGES AND IS AWARE THAT THE
SIS KISS HAS NO OBLIGATION TO SCREEN, EDIT, OR REVIEW POSTINGS
PRIOR TO THEIR APPEARANCE ON THE SITE, and Postings do not necessarily
reflect The Sis Kiss’s views. To the fullest extent permitted by applicable laws, The Sis
Kiss shall in no event have any responsibility or liability for the Postings or for any
claims, damages, or losses resulting from their use and/or appearance on the Site. The
Sis Kiss reserves the right to monitor all Postings and to remove any which The Sis Kiss
considers, in its sole discretion, to be offensive or otherwise not compliant with these
Terms and Conditions. The User hereby represents and warrants, upon adding a Posting
to the Site, that he/she/it has all necessary rights in and to all such Postings provided by
such User and all material they contain; that such User’s Postings shall not infringe any
proprietary or other rights of third parties; that such User’s Postings shall not contain any
viruses or other contaminating or destructive devices or features; that such User’s
Postings shall not contain any defamatory, indecent, offensive, tortious, or otherwise
unlawful material or content; and that such User’s Postings shall not be used to carry out
or solicit any unlawful activity and/or be used to make commercial solicitations. The
User hereby authorizes The Sis Kiss and grants The Sis Kiss an unlimited, worldwide,
perpetual, non-exclusive, assignable, sublicensable, and royalty-free license to use and/or
authorize others to use all or part of such User’s Postings in any manner, format, or
medium that The Sis Kiss or such other parties see fit. The User shall have no claim or
other recourse against The Sis Kiss for infringement of any proprietary right in any of the
User’s Postings and expressly waives any and all rights related thereto.
8. User Identity. A User may not create or use an account on the Site for anyone other than
such User. A User shall not let others use a User’s account and the User may not share
such User’s login information with others. A User shall keep such User’s contact and
profile information accurate and current. A User may never use another User’s account
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without their written permission. A User is solely responsible for the activity that occurs
on such User’s account. A User shall notify The Sis Kiss immediately in writing of any
breach of security or unauthorized use of a User’s account. The Sis Kiss shall not be
liable for any losses or damages caused by any unauthorized use of a User’s account. By
providing The Sis Kiss with an email address the User consents to The Sis Kiss using the
email address to send the User Site-related notices, including any notices required by law,
in lieu of communication by postal mail. If a User does not want to receive promotional
email messages, such User may opt out by unsubscribing from such email
communications from The Sis Kiss. The User hereby warrants that: all information that
such User provides to The Sis Kiss is true and accurate; the User will not use the Site in
violation of any international, Federal, State or local law, rule, ordinance or governmental
regulation; and, User will only access the Site on computers and mobile devices for
which the User is the authorized owner or has authority to access.
9. Digital Millennium Copyright Act Compliance. If a User has any copyright concerns
about any materials posted on the Site by others, please let The Sis Kiss know. The Sis
Kiss complies with the provisions of the Digital Millennium Copyright Act applicable to
internet service providers (17 U.S.C. § 512). Please provide The Sis Kiss with written
notice (“Notice”) by contacting The Sis Kiss’s Designated Agent at the following
address:
The Sis Kiss, Inc.
681 Dover Center Road
Westlake, Ohio 44145
Email: customerservice@thesiskiss.com
To be effective, the Notice must include the following:
a. A physical or electronic signature of the owner, or a person authorized to act on
behalf of the owner, (“Complaining Party”) of an exclusive right that is allegedly
being infringed upon;
b. Information reasonably sufficient to permit The Sis Kiss to contact the
Complaining Party, such as an address, telephone number, and if available, an
electronic mail address;
c. Identification of the allegedly infringing material on the Site (“Infringing
Material”), and information reasonably sufficient to permit The Sis Kiss to locate
such material on the Site;
d. Identification of the copyrighted work claimed to have been infringed upon
(“Infringed Material”), or, if multiple copyrighted works at a single site are
covered by a single Notice, a list of each copyrighted work claimed to have been
infringed (User shall be specific as to which Infringing Material is infringing on
which Infringed Material);
e. A statement that the Complaining Party has a good faith belief that use of
Infringing Material in the manner complained of is not authorized by the
copyright owner, its agent, or the law; and
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f. A statement that the information in the Notice is accurate, and under penalty of
perjury, that the Complaining Party is the owner or is authorized to act on behalf
of the owner of an exclusive right that is allegedly infringed.
10. Minors. The Site is intended for persons having the legal capacity to be bound by these
Terms and Conditions. By using the Site, the User represents and warrants that (i) such
User is at least 18 years of age; and, (ii) that such User have the right, authority, and
capacity to accept these Terms and Conditions and abide by all of the provisions set forth
herein. Children younger than 18 years of age may not use the Site under any
circumstances.
11. Purchase of Services and/or Goods from The Sis Kiss. A User may order Services
and/or Goods pursuant to these Terms and Conditions by accessing the Site and
specifying the specific Services and/or Goods being ordered, the quantity, and delivery
address. For such orders, The Sis Kiss may use email confirmation, separate purchase
orders or other applicable documentation that may be negotiated between a User and The
Sis Kiss, however, any and all such transactions shall be governed by these Terms and
Conditions. All orders are subject to acceptance by The Sis Kiss’s authorized
representative, and the order shall be effective only when payment is made in full to The
Sis Kiss and accepted by The Sis Kiss in writing (which may be communicated
immediately via the Site and/or by email). No order can be validly accepted orally. The
Sis Kiss shall provide User with the Services and/or Goods for the prices set forth on the
Site as of the date and time such order is accepted by The Sis Kiss.
12. Payment to Goods and/or Services Sold by The Sis Kiss. Upon selection of the Goods
and/or Services, the entire purchase price applicable to such Goods and/or Services shall
be paid by the User to The Sis Kiss in full prior to order and shipment of such Goods
and/or provision of such Services. By entering into a Transaction, User expressly
authorizes The Sis Kiss to charge User for such order, and any other charges User may
incur in connection with the foregoing Transaction to the payment method User provided
during registration (or to a different payment method if User changes User’s account
information). Prices and charges are subject to change without notice.
13. Shipping, Taxes and Other Charges. In addition to the amounts payable for Goods
and/or Services, User shall be solely liable and responsible for any and all shipping costs
and applicable sales and use taxes, customs, duties, and tariffs on and/or associated with
the Goods and/or Services imposed on The Sis Kiss at any time upon the sale and/or
shipment and/or provision of the Goods and/or Services, now imposed by international,
federal, state, municipal and/or any other governmental authorities or becoming effective
for or during the duration of the transactions contemplated herein. The Sis Kiss, in its
sole discretion, shall ship all products (to the extent applicable) via The Sis Kiss’s
preferred carrier. All Goods shall be shipped FOB Point of Shipment. Title and risk of
loss pass to User upon delivery to a carrier. User agrees that the delivery dates are
estimates only and may be changed. The Sis Kiss will use commercially reasonable
efforts to cause Goods to be shipped and/or Services provided in accordance with the
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delivery dates. However, The Sis Kiss shall not be liable for failure to ship the Goods or
provide the Services as estimated.
14. Order Modification; Cancellation. User shall not modify, terminate, cancel or
otherwise alter orders, or defer shipment, after acceptance of the order from The Sis Kiss
without the prior written consent of The Sis Kiss, which may be denied, withheld, or
conditioned in The Sis Kiss’s sole discretion. User’s wrongful rejection of Services
and/or Goods shall entitle The Sis Kiss to recover, in addition to any incidental damages
caused by User’s wrongful rejection, cancellation or repudiation, damages equal to the
profit (including reasonable overhead) which The Sis Kiss would have realized had User
fully performed, plus The Sis Kiss’s costs and expenses incurred prior to receipt by The
Sis Kiss of notice of cancellation by User. Any written acceptance of modification,
termination, and/or cancellation of an order by The Sis Kiss shall be subject to conditions
which shall indemnify The Sis Kiss against liability and expense incurred and
commitments made by The Sis Kiss and which shall provide for a fifteen percent (15%)
cancellation fee, profit on work in process and contract value of Services completed
and/or products or Goods completed and ready for shipment. In the event User fails to
timely make payment to The Sis Kiss of any amounts due and owing to The Sis Kiss
(including any applicable surcharge, tax, or freight charge), The Sis Kiss shall have the
right to terminate any User order or any unfulfilled portion thereof. The Sis Kiss shall
have the right to employ an attorney to collect the balance due, and User agrees to pay all
collection costs incurred by The Sis Kiss, including its reasonable attorney’s fees.
15. Delay. The Sis Kiss will not be liable and expressly disclaims and any all liability for
any delay in performance and/or delivery of Services and/or Goods, or for any damages
suffered by User by reason of delay. Delay in delivery shall not constitute nor justify
User’s cancellation of the Agreement nor shall it effect or alter any other portion or
section of these Terms and Conditions. Acceptance of Services and/or Goods upon
delivery shall constitute a wavier by User of any claim for damages on account of non-
shipment or delays in delivery or performance. In the event delay is caused by User’s
failure to furnish necessary information to The Sis Kiss, The Sis Kiss may extend the date
of shipment for a reasonable time in proportion to the period of User’s delay.
16. Inspections. User shall inspect any Goods and/or Services within TWENTY-FOUR (24)
HOURS after delivery such Goods to their shipping destination and/or upon completion
of the Services. User shall notify The Sis Kiss in writing within such twenty-four (24)
hour period of any material defects. If the defective Goods are covered under warranty
by the manufacturer of such Goods, then User shall, at User’s sole cost and expense,
follow such manufacturer’s return/replacement policy with respect to any such defective
Goods. User acknowledges and agrees that, in the event User seeks any type of refund,
replacement, and/or the like, User shall seek such refund, replacement, and/or the like
directly from the manufacturer of the Goods. The Sis Kiss shall not be under any
obligation to replace/return any defective Goods or deal with the manufacturer of such
Goods with respect to any such defective Goods. User’s failure to notify The Sis Kiss
within such twenty-four (24) hour period of any alleged nonconformity of the Goods, or
any commingling of such Goods shall constitute an acknowledgement by User that the
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Goods delivered conform and shall constitute an immediate and irrevocable acceptance
of such Goods by User and any claim by User with respect to the foregoing is
automatically and irrevocably waived. In the event User refuses to receive Goods
delivered hereunder, The Sis Kiss may exercise any or all of the remedies afforded to The
Sis Kiss by Ohio Revised Code Chapter 1302 et seq. The Sis Kiss shall have no
obligation to hold or resell such Goods for User’s account.
17. Returns. All returns to The Sis Kiss of any nonconforming Goods shall be in writing
(which may be communicated by email) and shall, to the extent applicable, include
User’s purchase order number, The Sis Kiss’s order number, The Sis Kiss’s invoice
number, and reasonably state the basis for such return. No claim, return or replacement
shall be allowed in respect of any Goods which have been altered, commingled, misused,
neglected, damaged or stored in any manner other than as instructed by The Sis Kiss that
adversely affects it after delivery by The Sis Kiss. All custom or non-standard items, if
any (for example, design changes, special packaging and items not catalogued, listed or
priced) shall be ordered from The Sis Kiss by User and supplied to User by The Sis Kiss
only on a non-cancellable and non-returnable basis.
18. Security. To secure payment and performance obligations hereunder, User hereby
expressly grants The Sis Kiss a continuing security interest in any and all current and
future Goods of the User in possession of The Sis Kiss and in all other property of User,
now or hereinafter in The Sis Kiss’s possession, while any amount due from User to The
Sis Kiss remains unpaid and while any obligation of User hereunder remains outstanding.
User irrevocably authorizes The Sis Kiss to file with appropriate governmental
authorities any and all UCC financing statements as required by applicable law.
19. SERVICES AND GOODS WARRANTY DISCLAIMERS; LIMITATION OF
LIABILITY. THE SIS KISS EXPRESSLY DISCLAIMS ALL AND MAKES NO
WARRANTIES WITH RESPECT TO ANY GOODS AND/OR SERVICES
PROVIDED HEREUNDER, WHETHER EXPRESSED, IMPLIED, OR STATUTORY,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED OR OTHER WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR
NON-INFRINGEMENT. ANY GOODS PURCHASED AND/OR SERVICES
PROVIDED BY THE SIS KISS ON BEHALF OF AND/OR TO USER IS
PURCHASED AND/OR PROVIDED ON AN “AS IS” BASIS AND THE SIS KISS
MAKES NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO SUCH GOODS AND/OR SERVICES. THE SIS KISS HAS NO AND
EXPRESSLY DISCLAIMS ANY DUTY TO VERIFY MANUFACTURER AND/OR
THIRD-PARTY INFORMATION AND USER HEREBY ACKNOWLEDGES AND
AGREES THAT ANY RELIANCE BY USER ON MANUFACTURER AND/OR
THIRD-PARTY INFORMATION SHALL BE AT USER’S SOLE RISK AND
LIABILITY. THE SIS KISS SHALL NOT BE LIABLE TO USER OR ANY OTHER
PERSON/ENTITY, DIRECTLY OR INDIRECTLY, FOR ANY CLAIMS, DEMANDS,
SUITS, COSTS, EXPENSES (INCLUDING ATTORNEYS’ FEES), LOSSES,
JUDGMENTS, DAMAGES, LIABILITIES OR OBLIGATIONS, OF ANY KIND OR
NATURE, ARISING IN ANY MANNER FROM OR IN CONNECTION WITH ANY
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TRANSACTION AND/OR THE GOODS AND/OR SERVICES. THE SIS KISS
SHALL NOT BE LIABLE FOR AND DISCLAIMS ANY AND ALL LOST PROFITS
AND ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES, WHETHER ARISING OUT OF ANY TRANSACTION,
THE GOODS AND/OR SERVICES, OR THE PERFORMANCE BY THE SIS KISS
UNDER THESE TERMS AND CONDITIONS. IN THE EVENT OF TERMINATION
OR CANCELLATION OF A TRANSACTION BY THE SIS KISS FOR ANY
REASON, THE SIS KISS SHALL NOT BE LIABLE TO USER FOR
COMPENSATION, INDEMNIFICATION, REIMBURSEMENT OR DAMAGES ON
ACCOUNT OF ANY LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES
OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, LEASES OR
COMMITMENTS MADE IN CONNECTION WITH A TRANSACTION OR THE
ANTICIPATION OF EXTENDED PERFORMANCE THEREUNDER. IN NO EVENT
SHALL THE SIS KISS HAVE ANY LIABILITY FOR DELAYS IN SHIPMENTS,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF
WHETHER SUCH CLAIM IS BROUGHT IN TORT, BREACH OF CONTRACT,
BREACH OF WARRANTY OR OTHER THEORY OF LAW OR EQUITY.
20. Intellectual Property. User shall have no rights with respect to any of The Sis Kiss’s
existing or subsequently-acquired or developed Intellectual Property, as defined below,
rights or trade secrets or confidential information of The Sis Kiss, and User hereby
acknowledges that it shall not acquire any rights in respect thereof and that all such trade
secrets and confidential information are and shall remain vested in or controlled by The
Sis Kiss. “Intellectual Property” for purposes of these Terms and Conditions means (i)
patents, patent applications, provisional applications, patent disclosures, including all
ideas, inventions and improvements disclosed therein, and all reissues, continuations,
continuations in part, divisions and reexaminations thereof; (ii) trademarks, service
marks, trade names, trade dress, logos, slogans, domain names, including all goodwill
appurtenant thereto, and all registrations and applications for registrations thereof and all
renewals and extensions thereof; (iii) copyrights and mask works and all registrations and
applications for registration thereof; (iv) computer software, software applications and
platforms, websites, disks, disk drives, data, data bases and user documentation and audio
visuals, domain names, and text materials; (v) all trade secrets, research and development
materials, processes, procedures, know how, ideas discoveries, inventions, customer lists,
supplier lists, formulas, drawings and designs, technical data, marketing, financial and
business plans; (vi) advertising materials currently or in the future utilized by the The Sis
Kiss; and (vii) copies and tangible embodiments thereof (in whatever form or medium),
and related documentation and goodwill. User acknowledges and agrees that The Sis
Kiss owns the exclusive right, title and interest and into all of The Sis Kiss’s Intellectual
Property. User shall not at any time do or permit to be done any act or thing which
impairs or may impair the rights of The Sis Kiss with respect to The Sis Kiss’s
Intellectual Property. User will never represent that it has any ownership in any of The
Sis Kiss’s Intellectual Property. User expressly agrees that all of the use and good will of
the Intellectual Property shall accrue to the sole benefit of The Sis Kiss.
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21. Indemnification. User shall indemnify, defend and hold harmless The Sis Kiss and its
affiliates, members, investors, managers, officers, employees, representatives, and their
successors in interest and assigns (collectively, the “Indemnified Parties”) from and
against any and all losses, damages, or expenses of whatever form or nature, including
reasonable attorney’s fees and other costs of legal defense, whether direct or indirect, that
they, or any of them, may sustain or incur as a result of (i) any act or omission of the
User; (ii) a breach by User of any representation, warranty, and/or obligation with any
Indemnified Party; (iii) failure by User to pay any and all applicable taxes, customs,
duties, tariffs, and the like arising from the Transactions set forth in these Terms and
Conditions; (iv) any and all corrupt data, viruses, malware, or security breaches directly
or indirectly introduced by the User; (v) a violation by User (and/or any of its officers,
managers, members, investors, shareholders, directors, employees or agents, to the extent
applicable) of any applicable law, regulation, or order of the United States or any other
applicable government or quasi-governmental authority; (vi) use of the Site by User
(and/or any of its officers, managers, members, investors, shareholders, directors,
employees or agents, to the extent applicable); and/or (vii) any ownership or operation of
the Goods and/or Services by User (and/or any of its officers, managers, members,
investors, shareholders, directors, employees or agents, to the extent applicable). The
indemnification obligations under this Section shall continue indefinitely.
22. No Restrictions against The Sis Kiss. User hereby acknowledges and agrees that The
Sis Kiss may sell any inventory, Services, Goods, equipment, machinery, or other
products, whether covered under these Terms and Conditions or not, to any party
pursuant to any terms and conditions agreed to by The Sis Kiss and nothing in these
Terms and Conditions shall restrict The Sis Kiss from the same.
23. Independent Contractor. The parties agree that for all intents and purposes, The Sis
Kiss is an independent contractor and nothing set forth herein shall be construed as
creating any partnership, joint venture, agency or employment relationship whatsoever
between User and The Sis Kiss.
24. Termination; Suspension. The Sis Kiss, in its sole discretion and upon written notice to
the User, may immediately terminate any Transaction or suspend its performance until
such time as The Sis Kiss has received full payment for any Services and/or Goods
already delivered or in process and is satisfied (in The Sis Kiss’s sole discretion) as to
User’s credit for future deliveries of Services and/or Goods and its performance
hereunder. If The Sis Kiss suspends performance and later continues its performance,
The Sis Kiss shall be entitled to such extension of time for performance as is necessitated
by the suspension. Termination or suspension of performance by The Sis Kiss shall not
relieve User of its obligations to make payments on a timely basis. Payments, whether
full or partial, received from or for the account of User, regardless of writings, legends, or
notation upon such payments, or regardless of other writings, statements, or documents,
shall be applied by The Sis Kiss against any amount owing by User with full reservation
of all The Sis Kiss’s rights, without an accord and satisfaction of User’s liability. Unpaid
balances will be subject to a finance charge of two percent (2%) per month (24%
annually) until all unpaid balances are paid in full.
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25. Consequences of Termination or Suspension. Termination or suspension of a
Transaction by The Sis Kiss in accordance with the foregoing provisions will not affect
(i) the rights and obligations of the parties with respect to amounts due and owed by User
to The Sis Kiss prior to the effective date of the termination, (ii) the rights and obligations
of the parties with respect to intellectual property rights, indemnification, confidentiality,
and governing law of the parties as set forth herein, or (iii) terminate liabilities arising out
of conduct of User prior to the actual date of termination. Otherwise, all rights and
obligations of the parties to a specific Transaction shall cease to exist upon termination of
such Transaction. In the event any amount due from User to The Sis Kiss remains unpaid
upon termination of a Transaction, User irrevocably authorizes The Sis Kiss to sell any
and all Goods of the User in possession of or manufactured by The Sis Kiss and in all
other property of User in The Sis Kiss’s possession anywhere in the world, by any and all
methods, manners and media, including, without limitation, by digital marketing and
internet sales. User acknowledges and agrees that The Sis Kiss and/or The Sis Kiss’s
affiliates or representatives may sell such Goods and property of the User in accordance
with terms and conditions as The Sis Kiss determines from time to time in its sole
discretion, including, without limitation, purchase price, payment terms, and/or shipping
terms. The Sis Kiss is irrevocably authorized to bill, invoice and collect all sales
proceeds from the sale of such Goods and property of the User by The Sis Kiss, its
affiliates and representatives. Upon satisfying any and all amounts due and owed to The
Sis Kiss by User, including costs and expenses incurred in selling such Goods and
property and collecting upon such sales, The Sis Kiss shall pay the excess proceeds, if
any, to User.
26. Termination Not Exclusive Remedy. Any remedy provided to The Sis Kiss shall not be
construed to be an exclusive remedy and shall not deprive The Sis Kiss of its ability to
pursue other available remedies. The parties agree that The Sis Kiss’s damages in the
event of termination would be difficult or impossible to ascertain and, therefore, any
early cancellation or termination charges invoiced to User by The Sis Kiss are intended to
serve as liquidated damages rather than penalties.
27. Force Majeure. The Sis Kiss shall not be liable for any loss, damage, delays, changes in
shipment schedules or failure to deliver caused by any event beyond its control,
including, without limitation, acts or omissions of any manufacturer, accident, fire, actual
or threatened strike or riot, explosion, mechanical breakdown (including technological or
information systems), plant shutdown, unavailability of or interference with necessary
transportation, any raw material or power shortage, compliance with any law, regulation
or order, acts of God or public enemy, prior orders from others, or limitations on The Sis
Kiss’s or a manufacturer’s products or marketing activities or any other cause or
contingency beyond The Sis Kiss’s direct control. The time for performance shall be
extended for a period equivalent to the delay. If, by reason of any of the foregoing events,
The Sis Kiss’s supply of the Goods shall be insufficient to meet all requirements,
including its own, The Sis Kiss shall have the right, at its option, and without liability, to
allocate its available supply of Goods among its present and future Users in such a
manner as The Sis Kiss deems equitable.
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28. Assignment. The rights under these Terms and Conditions are not assignable nor are the
duties delegable by User without the written consent of The Sis Kiss first having been
obtained, and any attempted assignment or delegation without such consent will be null
and void. Nothing contained in these Terms and Conditions is intended to convey upon
any person or entity, other than the parties and their successors in interest and permitted
assigns, any rights or remedies under or by reason of these Terms and Conditions unless
expressly stated. All covenants, agreements, representations and warranties of the parties
contained in these Terms and Conditions are binding on and will inure to the benefit of
User and The Sis Kiss, respectively, and their respective successors and permitted
assigns.
29. Captions and Section Headings. Captions and section headings are for convenience
only, are not a part of these Terms and Conditions and may not be used in construing
them.
30. Waiver of Terms and Conditions. The failure of The Sis Kiss in any one or more
instances to insist upon performance of any of the terms and conditions contained herein,
or to exercise any right or privilege hereunder, shall not be construed as a waiver of any
The Sis Kiss’s rights or privileges hereunder.
31. Governing Law; Venue. These Terms and Conditions shall be governed by and
construed in accordance with the laws of the State of Ohio, including its provisions of the
Uniform Commercial Code, without regard to choice or conflicts of law principles.
These Terms and Conditions shall be deemed to have been entered into at Cleveland,
Ohio, U.S.A., regardless of the place or places of business of the User.
32. Exclusive Jurisdiction. THE USER HEREBY IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
EXCLUSIVE JURISDICTION OF ANY OHIO STATE COURT OR FEDERAL
COURT SITTING IN CUYAHOGA COUNTY, OHIO, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THE SITE AND THESE
TERMS AND CONDITIONS. THE USER AGREES THAT A FINAL JUDGMENT IN
ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN
ANY OTHER MANNER PROVIDED BY LAW. Notwithstanding the foregoing, in the
event User’s primary place of business is located within the People’s Republic of China
(each, a “Chinese Customer”), all disputes, controversies, or differences which may arise
between The Sis Kiss and a Chinese Customer, out of or in relation to or in connection
with these Terms and Conditions or for the breach of the foregoing, shall be finally
settled under the Rules of Arbitration of the International Chamber of Commerce by one
(1) arbitrator appointed in accordance with the said Rules. The language of the arbitration
shall be English. The situs for such arbitration shall be Hong Kong, China. The
arbitrator shall apply the laws of the State of Ohio, USA to the merits of the dispute. The
award rendered by the arbitrator shall be final and binding upon both The Sis Kiss and
Chinese Customer and may be enforced in any court of competent jurisdiction. The
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parties hereby exclude the application of the United Nations Convention on Contracts for
the International Sale of Goods.
33. International Transactions. All payments, including for any international transactions,
will be made in U.S. dollars unless otherwise agreed to by The Sis Kiss, and User will be
responsible for any currency conversion charges. User will, at User’s expense, obtain all
export and import licenses, permits and clearances required by applicable laws,
regulations, ordinances, and the like in respect of the Products.
34. Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM USER
MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS AND
CONDITIONS OR THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR
AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF
ACTION OR CLAIM IS PERMANENTLY BARRED.
35. Export Regulations. User acknowledges that certain Goods sold by The Sis Kiss
hereunder and any documentation and other technology of The Sis Kiss may be subject to
application export control and sanction laws, regulations, and orders. User certifies,
represents, and warrants that it is in compliance and shall take all necessary acts to
remain in compliance with all applicable export and re-export control laws and
regulations, including, without limitation, the Export Administration Regulations
maintained by the U.S. Department of Commerce, trade and economic sanctions and
regulations maintained by OFAC (defined below), and the International Traffic in Arms
Regulations maintained by the U.S. Department of State. User hereby agrees to defend,
indemnify and hold The Sis Kiss harmless from and against any and all claims, damages,
losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or
related to any breach of the foregoing certification.
36. FCPA; Anti-Bribery. In carrying out its responsibilities hereunder and in any
Transaction, User shall comply with all applicable anti-bribery laws including, but not
limited to, the U.S. Foreign Corrupt Practices Act, as revised (“FCPA”), and the
Organization for Economic Cooperation and Development Anti-Bribery Convention, as
implemented in the territory. User understands that the FCPA generally prohibits the
promise, payment or giving of anything of value either directly or indirectly to any
government official for the purpose of obtaining or retaining business or any improper
advantage. For purposes of this section, “government official” means any official, officer,
representative, or employee of any non-U.S. government department, agency or
instrumentality (including any government-owned or controlled commercial enterprise),
or any official of a public international organization or political party or candidate for
political office. User represents and warrants that, in the performance of these Terms and
Conditions and in connection with any Transaction, (i) neither it nor any of its
representatives are governmental employees or officials or candidates for political office
and User will advise The Sis Kiss of any change in such representation; (ii) User and its
representatives have not and will not make, offer, or agree to offer anything of value to
any government official, political party, or candidate for office; (iii) User will comply
with all provisions of the FCPA and the regulations thereunder as amended from time to
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time; and (iv) User agrees to indemnify, defend, and hold The Sis Kiss harmless for
damages and expenses resulting from a violation of the foregoing by User or its
representatives.
37. OFAC. Pursuant to United States Presidential Executive Order 13224 (“Executive
Order”), User may be required to ensure that it does not transact business with persons or
entities determined to have committed, or to pose a risk of committing or supporting,
terrorist acts and those identified on the list of Specially Designated Nationals and
Blocked Persons (“List”) generated by the Office of Foreign Assets Control (“OFAC”) of
the U.S. Department of the Treasury. The names or aliases of these persons or entities
(“Blocked Persons”) are updated from time to time. User certifies, represents and
warrants to The Sis Kiss that: (a) it is not acting, directly or indirectly, for or on behalf of
any person, group, entity or nation named by any Executive Order of the United States
Treasury Department as a terrorist, “Specially Designated National and Blocked Person”
or any other banned or blocked person, entity, nation or transaction pursuant to any Law
that is enforced or administered by the Office of Foreign Assets Control; and (b) it is not
engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating
this transaction, directly or indirectly on behalf of, any such person, group, entity or
nation. User hereby agrees to defend, indemnify and hold The Sis Kiss harmless from and
against any and all claims, damages, losses, risks, liabilities and expenses (including
attorney’s fees and costs) arising from or related to any breach of the foregoing
certification.
For questions or feedback about these Terms and Conditions, please contact The Sis Kiss
at:
The Sis Kiss, Inc.
681 Dover Center Road, Westlake Ohio 44145
Email: customerservice@thesiskiss.com