Terms and Conditions
NOTE: THESE TERMS AND CONDITIONS OF SALE CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER, THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH TOKITA SEED AMERICA INC. ("TSA", "WE" OR "US"). YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
1. Your Account
You are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer to prevent unauthorized access to your account. You agree to accept responsibility for all activities that occur under your account or password. You should take all necessary steps to ensure that the password is kept confidential and secure and should inform us immediately if you have any reason to believe that your password has become known to anyone else, or if the password is being, or is likely to be, used in an unauthorized manner.
Please ensure that the details you provide us with are correct and complete and inform us immediately of any changes to the information that you provided when you registered. The Website only sells products to individuals who can purchase with a credit card/debit card or bank account. If you are under eighteen (18), you may only purchase products using the Website with the involvement and supervision of a parent or guardian.
TSA reserves the right to cancel orders at its discretion including without limitation if your payment is rejected or otherwise cannot be processed. If we cancel an order, it will be without charge to you. By providing a payment method, you expressly authorize us to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto.
2. Privacy
Please review our Privacy Policy, which also governs your visit to the Website to understand how TSA uses your information.
3. Our Contract
When you place an order to purchase a product from the Website, we will send you an email confirming receipt of your order and containing the details of your order (the "Order Confirmation E-mail"). The Order Confirmation Email is acknowledgement that we have received your order and does not confirm acceptance of your offer to buy the product(s) ordered. We only accept your offer, and conclude the contract of sale for a product ordered by you, when we dispatch the product to you and send e-mail confirmation to you that we've shipped the product to you (the "Shipping Confirmation E-mail"). Your contract is with Tokita Seed America, INC. We will retain the title in the products until full payment has been made by you and has been received by TSA. TSA reserves the right to hold any orders after the Shipping Confirmation E-mail has been sent out for internal review. In the event that TSA is unable to supply the products in your order due to stock availability, the order will be cancelled and a refund processed.
If you place a pre-order for a product, your order will be confirmed as set out above and payment will be taken upon shipment. Your Order Confirmation Email will advise when you can expect to receive the pre-ordered product. Please note that if you order available products with the pre-ordered product, your entire order will be shipped once the pre-ordered product becomes available.
TSA reserves the right to hold any orders prior to shipping for security review. TSA only delivers its products to the locations listed on the Website. We regret that we cannot ship to any place outside the 50 United States. To place an order for shipment outside of the United States, you will need to access the area of the Website specific to your shipment country via the Menu tab. In the event that an order is placed for a delivery to a location where we do not deliver, the order will be cancelled and a refund processed.
4. Deliveries
We will endeavor to deliver all products you have ordered within the time period specified on your Order Confirmation Email.
All products purchased from the Website are made pursuant to a shipment contract. This means that the risk of loss for such products pass to you upon our delivery to the carrier. If you have received your Shipping Confirmation Email but your products have not arrived within the time specified in the Shipping Confirmation Email, please contact us, and we will take all reasonable steps to assist you. Note that during exceptionally busy periods or when the weather is particularly inclement, please allow an additional day before raising a query.
If your order has not been received within our specified timescales as further set out below, in the first instance please check with your local UPS, USPS, or DHL delivery office to see that they are not holding your parcel. If they confirm that they do not have your products, please contact us, and we will do our best to assist.
5. Returns
You can only use the following process to return TSA products which have been purchased directly through this Website.
If for any reason you are not happy with your TSA products, please follow our returns procedure so that we can assist you in the exchange or refund of your order. Our return procedure does not affect your statutory rights.
6. Discrepancies
If there are any discrepancies with your order, you must notify us within seven (7) working days of receipt. If you have been shipped the incorrect goods then please do accept our apologies. Any replacements will be sent to you at no extra cost to yourself.
7. Pricing and Availability
All prices are quoted in USD and are exclusive of any applicable sales tax. All item prices are exclusive of delivery charges. We list availability information for products sold by us on the Website, including on each product information page. Beyond what we say on that page or otherwise on the Website, we cannot be more specific about availability. Please note that shipping dates are estimates only. Unless otherwise stated, dispatch dates are not guaranteed and should not be relied upon. As we process your order, we will inform you by email if any products you order are subsequently found to be unavailable. Despite our best efforts, a small number of the products on the Website may be mispriced. If a product's correct price is lower than our stated price, we will charge the lower amount and send you the product. If a product's correct price is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping the products or cancel your order and notify you of such cancellation.
8. Limitation of Liability
TSA WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM ORDERS MADE VIA THE WEBSITE OR ARISING FROM USE OF THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES. Laws of certain countries or states do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights.
9. Electronic Communications
When you visit the Website or send emails to us, you are communicating with us electronically. We will communicate with you by email or by posting notices on the Website. For contractual purposes, you consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
10. Dispute Resolution and Arbitration; Class Action Waivers
Please Read This Provision Carefully. It Affects Your Legal Rights.
This Provision facilitates the prompt and efficient resolution of any dispute (e.g. claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and us. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
This Provision provides that all disputes between you and us shall be resolved by binding arbitration because acceptance of these Terms and Conditions of Sale constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because We believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and Conditions of Sale and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, You must first give Us an opportunity to resolve the Dispute which is first done by emailing to Us the following information using the following: (1)Your name, (2) Your address, (3) A written description of your Claim, and (4) A description of the specific relief you seek. If we do not resolve the Dispute within 45 days after receiving your notification, then you may pursue your Dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or we may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS AND CONDITIONS OF SALE (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing us the following information using (1) Your name; (2) Your address; (3) A clear statement that You do not wish to resolve disputes with us through arbitration. Either way, we will not take any decision you make personally. In fact, we promise that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with us. But, we do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
Arbitration Procedures
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative procedures or rules apply to the arbitration.
Because this Website and these Terms and Conditions of Sale concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or we may initiate arbitration in either California or the federal judicial district that includes your billing address. Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator's hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and we specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of this Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
Jury Waiver
You understand and agree that by accepting this Provision in these Terms and Conditions of Sale, you and we are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g. the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
Severability
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
Continuation
This Provision shall survive the termination of your account with us or our affiliates and your discontinued use of this Website. Notwithstanding any provision in these Terms and Conditions of Sale to the contrary, we agree that if we make any change to this Provision (other than a change to the Notice Address), You may reject any such change and require us to adhere to the present language in this Provision if a dispute between us arises.
11. Alteration of Service or Amendments to the Conditions
We reserve the right to make changes to these Terms and Conditions of Sale at any time. Your orders will be subject to the policies and Terms and Conditions of Sale in force at the time that you use the Website or that you order products from us, unless any change to those policies or these conditions is required to be made by law or government authority (in which case it will apply to orders previously placed by you). If any of the provisions of these Terms and Conditions of Sale are deemed invalid, void, or for any reason unenforceable, that condition will be deemed severable and will not affect the validity and enforceability of the remaining conditions.
12. Events Beyond Our Reasonable Control
TSA will not be held responsible for any delay or failure to comply with our obligations under these Terms and Conditions of Sale if the delay or failure arises from any cause that is beyond our reasonable control. This condition does not affect your statutory rights.
13. Waiver
If you breach these Terms and Conditions and we take no action, we will still be entitled to use our rights and remedies in any other situation, or in the same situation at a different time, where you breach these conditions.
14. Governing Law and Jurisdiction
Except for disputes subject to arbitration as described above, any disputes relating to any purchase by you on the Website of any products and these Terms and Conditions of Sale will be governed by and construed in accordance with the laws of the United States and the State of California. You agree, as we do, to submit to the non-exclusive jurisdiction of the courts in the State of California.
15. Resale
You may purchase products from the Website for personal use only and not for resale. If you would like to be contacted with regard to becoming an official TSA resaler, please send your business contact details to TSA and a member of our sales team will be in contact with you shortly.
16. Color Disclaimer
We have made every effort to accurately represent the products on the Website. However, as colors vary between monitors and operating systems, we cannot guarantee that the colors that appear on your screen accurately reflect the actual colors of products.
17. Legal Statement
Tokita Seed America and Tokita Seed logos are trademarks of Tokita Seed CO, Ltd. Our US office is located at Tokita Seed America, INC., 250 Nagareda Drive, Unit #6, Gilroy, California 95020.