1. Toxicity Limitation of liability
1.4. PLEASE NOTE: The seeds and the plants grown after sowing them may contain powerful toxins and allergens that are EXTREMELY dangerous to humans and other living things.
1.5. Extreme care must be exercised in handling these planting seeds and in subsequent cultivation of the plants and the handling of their products.
1.6. Kaiima and its shareholders, directors, officers, employees and/or anyone else acting on its behalf shall not be responsible , or liable to you, for any damage, injury (including death), loss or harm caused, suffered or incurred directly or indirectly by, or in connection with, the toxicity of the seeds.
1.7. YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU UNDERSTAND THE RISKS RELATED TO THE HARVEST, HANDLING, USE AND SALE (COLLECTIVELY: “USE”) OF THE SEEDS, PARTICULARLY THOSE INVOLVING THE TOXIC PROTEIN RICIN, WHICH CAN BE HAZARDOUS AND DEADLY TO HUMAN BEINGS AND OTHER LIVING THINGS. YOU HEREBY AGREE AND ACKNOWLEDGE THAT KAIIMA EXPRESSLY DISCLAIMS ALL LIABILITY IN CONNECTION WITH THE USE OF THE SEEDS, AND YOU ASSUME ALL RISK AND RESPONSIBILITY RELATED TO THE USE OF THE SEEDS OR ANY DERIVATIVES OF THE SEEDS.
1.8. BY SIGNING BELOW, YOU HEREBY ACKNOWLEDGE AND AGREE THAT IN ANY EVENT, DESPITE THE FOREGOING, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY, IN THE AGGREGATE, OF KAIIMA AND KAIIMA’S AFFILIATES AND THEIR OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES AND SUBCONTRACTORS, AND ANY OF THEM, TO YOU, YOUR CUSTOMERS, AND ANYONE CLAIMING BY OR THROUGH YOU, FOR ANY AND ALL CLAIMS, LOSSES, COSTS OR DAMAGES, INCLUDING ATTORNEYS’ FEES AND COSTS AND EXPERT-WITNESS FEES AND COSTS OF ANY NATURE WHATSOEVER, OR CLAIMS OR EXPENSES RESULTING FROM OR IN ANY WAY RELATED TO THE USE OF THE SEEDS OR ANY DERIVATIVES OF THE SEEDS, FROM ANY CAUSE OR CAUSES, INCLUDING WITHOUT LIMITATION, DEATH, DISABILITY, POISONING OR INJURY, SHALL NOT EXCEED THE TOTAL PURCHASE PRICE ACTUALLY RECEIVED BY KAIIMA UNDER THE TERMS OF THIS SPECIFIC SALE OF THE SEEDS, OR THE TOTAL AMOUNT OF $10,000, WHICHEVER IS GREATER. IT IS INTENDED THAT THIS LIMITATION SHALL APPLY TO ANY AND ALL LIABILITY OR CAUSES OF ACTION HOWSOEVER ALLEGED OR ARISING IN CONNECTION TO SUCH USE OF THE SEEDS.
2. General Representation and Warranty.
2.1. There are multiple environmental and agronomic factors which can affect the seeds, and cause failure of seeds to germinate and/or a reduction of yield. While Kaiima has made the required efforts to ensure that the seeds are of the highest quality, certain seeds may carry seed borne diseases that are not apparent to you or to Kaiima. Kaiima makes no warranty or representation that its seeds are free of seed borne diseases. All risks of non-performance, non-germination, reduced yield, reduced performance and/or crop damage due to seed borne diseases shall be assumed by you and/or the user of the seeds. This allocation of risk is reflected in the price of the seeds.
2.2. Representations of the seed product and its crop, including photographs, appearing on Kaiima products’ packaging, labels, website, advertising and technical publications, are representative of the seed variety only and should not be viewed as a representation of what your crop will look like. A variety may differ from its representation in various forms, including in color, shape and size.
2.3. THE SOLE AND EXCLUSIVE WARRANTY GRANTED BY KAIIMA HEREUNDER WITH RESPECT TO THE SEEDS IS THAT WHEN PROVIDED BY KAIIMA OR AN AUTHORIZED DISTRIBUTOR OF KAIIMA, KAIIMA’S SEEDS WILL CONFORM TO ITS LABEL DESCRIPTIONS.
2.4. Disclaimer of Warranty; Limitation of Liability. Kaiima hereby disclaims all implied warranties with respect to the performance of the seeds, including any implied warranty of merchantability and fitness for a particular purpose.
3. Limitation of Liability
3.1. YOUR, AND YOUR USERS’ EXCLUSIVE REMEDY AND KAIIMA’S SOLE LIABILITY FOR ANY LOSS OR DAMAGE ARISING FROM PURCHASE OR USE OF KAIIMA’S SEEDS SHALL BE PAYMENT TO YOU OF AN AMOUNT EQUAL TO THE PRICE PAID FOR THE SEEDS USED, IF ANY. Neither you, nor any user of the seeds may recover any incidental or consequential damages, including loss of profit or yield and amounts expended. This Limitation of Liability shall apply to any claims presented to Kaiima under any legal theory, including without limitation, a claim based on contract, tort, negligence, strict liability or otherwise.
3.2. You and your users hereby agree that if Kaiima refunds an amount equal to the price paid for Kaiima’s seeds, this Limitation of Liability will not have failed its essential purpose.
In the event of any claim arising in connection with the seeds, Kaiima must be given immediate notice of the claim (and in no event later than thirty (30) days) so that it can conduct an investigation of the allegedly affected seed and/or crop. You or the seed user shall notify Kaiima immediately. Any claims made for which Kaiima did not receive notice within thirty (30) days of the date on which the claim arose, shall be barred.
5. Your Liability.
You and the users of the seeds assume all liability for damages that may arise from your improper use, storage or disposal of the seeds hereunder. Kaiima will not be liable to you or the users of the seeds for any loss, claim or demand made by you or the users of the seeds, or made against Kaiima by any third party, due to or arising from your or the users of the seeds’ improper use, storage, or disposal of the seeds.
6. Intellectual Property Rights.
6.2. Use Rights. You may use Kaiima’s seeds for the sole purpose of producing a crop, which you intend to retain or sell as produce.
6.3. Restrictions. YOU MAY NOT:
6.3.2. Use Kaiima’s seeds, or any parental lines which may be found in the seeds, or any resultant crops, plants or plant tissue resulting therefrom, for any breeding, research, seed production, reproduction, reverse engineering, molecular or genetic analysis or engineering or any other purpose other than producing a crop for use or sale as produce.
7. Statute of Limitations.
9. Seed Enhancement or Conditioning.
In the event that the seeds are enhanced, treated or otherwise conditioned by anyone other than Kaiima, KAIIMA HEREBY DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE SEEDS, AND THE EFFECT OF ANY SUCH PROCESSES.
10. Repackaging of Seeds.
If the seeds are removed from Kaiima’s packaging and repacked into any other type of container or packaging for enhancement, treatment, resale, or any other purpose, KAIIMA HEREBY DISCLAIMS ALL WARRANTIES AND DENIES ALL LIABILITY FOR ACCURACY OF LABELING DESCRIPTIONS, SEED QUANTITY AND SEED QUALITY.
11. Technical Advice.
Any technical advice given by Kaiima in connection with the seeds and their use constitute suggestions. KAIIMA HEREBY DISCLAIMS ANY WARRANTIES AND DISCLAIMS ALL LIABILITY IN CONNECTION WITH SUCH ADVICE.
12. Governing Law; Jurisdiction.
13. No Amendment.
YOU MUST PROVIDE WRITTEN NOTICE OF THESE TERMS TO ANY SUBSEQUENT USER OF SEEDS IN YOUR POSSESSION AND/OR OF PLANTS GROWN THEREFROM, failing which you will be liable to defend, hold harmless and indemnify Kaiima from and against any claim asserted by any such user.Your attention is drawn to the fact that you may NOT consider any statement, declaration or conduct by Kaiima or anyone acting on its behalf as derogating from or diminishing the effect of anything stated in these terms, be such statement, declaration or conduct express or implied, in oral form or in writing, unless Kaiima expressly refers in writing to these terms and advises you in writing which of these terms is waived or overridden and to what extent and scope.
14.1 Kaiima will not be deemed to have waived any right or remedy by reason of any conduct, omission, delay or statement; waiver shall be effective only if expressly made by Kaiima in writing and duly signed by its authorized signatories. Waiver of any right or remedy in one case shall not be deemed waiver of such or other right(s) or remedy(ies) in any other case.