- Your Acceptance
Welcome to the Terms of Use for the Lively Mood website (www.livelymood.com). This is an agreement (“Agreement”) between Lively Mood Botanicals, LLC (“Lively Mood”), the owner and operator of www.livelymood.com and any services offered via the website (collectively the “Site”) and you (“you”, “your” or “user(s)”), a user of the Site. Throughout this Agreement, the words “Lively Mood,” “us,” “we,” and “our,” refer to our company, Lively Mood, as is appropriate in the context of the use of the words.
By clicking “I agree” or accessing the Site you agree to be bound by this Agreement and the Privacy Policy. We may amend this Agreement at any time and may notify you if we do so. Please be aware that there are ARBITRATION AND CLASS ACTION PROVISIONS contained in this Agreement.
- Accounts
Portions of the Site may require you to create a login or sign-up for an account. You must fully complete the registration process by providing us with your current, complete, truthful, and accurate information as prompted by the applicable registration form. Where required, Lively Mood may also assign you a username and password. You are entirely responsible for maintaining the confidentiality of your password and account and for any and all activities that occur under your account. You agree to notify Lively Mood immediately of any unauthorized use of your account or any other breach of security. Lively Mood will not be liable for any losses you incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Lively Mood or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
- Disclaimer
All KRATOM (M. Speciosa) products sold on this site are not INTENDED for HUMAN CONSUMPTION. THE KRATOM (M. SPECIOSA) PRODUCTS SOLD ON THIS SITE ARE INTENDED FOR RESEARCH OR HORTICULTURAL PURPOSES, AROMATHERAPY, AND CRAFT SOAP MAKING ONLY. They are NOT approved by the FDA for internal use. They are NOT dietary supplements. All products, claims and reviews on this site have not been evaluated by the FDA (U.S. Food and Drug Administration) and are not intended to diagnose, treat, prevent, or cure any disease or medical condition.
- User Representations and Warranties
You, the user represent and warrant as follows: you are eighteen (18) years of age or older, or of the age of majority where you reside; you intend to use, and shall use, any products purchased through our Site for your own personal and non-commercial use. You further represent and warrant that you do not intend to consume any of the products purchased.
- Privacy
Please read Lively Mood’s Privacy Policy for more information regarding our collection and use of your information. You will not be required to create a user account when you use or access the Site. However, we may collect information from you when you decide to order any products via the Site.
- Site Availability and Modification
Although we will attempt to provide continuous Site availability to you, we do not guarantee that the Site will always be available, work, or be accessible at any particular time. We reserve the right to alter, modify, update, or remove our Site at any time. We may conduct such modifications to our Site for security reasons, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications. For example, we may provide updates to fix security flaws, or to respond to legal demands. Please note that this is a non-binding illustration of how we might exercise our rights under this section, and nothing in this section obligates us to take measures to update the Site for security, legal, or other reasons.
- Third Party Links
The Site may contain links to third party websites that are not owned or controlled by Lively Mood. Lively Mood has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Lively Mood will not and cannot censor or edit the content of any third-party site. By using the Site, you expressly relieve Lively Mood from any and all liability arising from your use of any third-party website.
- Your Conduct While Using The Site
When accessing or using our Site, you are solely responsible for your use and for any use of the Lively Mood Site made using your account. You agree to abide by the following rules of conduct:
- You will not copy, distribute or disclose any part of the Site in any medium, including without limitation by any automated or non-automated “scraping”;
- You will not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Site;
- You will not use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Site or to extract or export data collected through the Site;
- You will not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
- You agree not to use the Site to stalk, harass, bully or harm another individual;
- You agree that you will not hold Lively Mood responsible for your use of the Site;
- You agree not to violate any requirements, procedures, policies or regulations of networks connected to Lively Mood;
- You agree not to interfere with or disrupt the Site;
- You agree to not violate any US federal laws, state laws, or local laws while using the Site; and
- You agree not to use the Site in any way that is: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.
If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Site may at our discretion be terminated or suspended. Generally, we will provide an explanation for any suspension or termination of your use of any of our Site, but Lively Mood reserves the right to suspend or terminate any account at any time without notice or explanation.
- Intellectual Property
The name “Lively Mood,” the design of the Lively Mood Site along with Lively Mood created text, writings, images, templates, scripts, graphics, interactive features and the trademarks, marks and logos contained therein (“Marks”), are owned by or licensed to Lively Mood. The Marks are subject to copyright and other intellectual property rights under US laws and international conventions. Lively Mood reserves all rights not expressly granted in and to the Site. You agree to not engage in the use, copying, or distribution anything contained within the Site unless we have given you express written permission.
- Orders and Payment
Order Acceptance
All orders are subject to availability. An order contract is not created until we accept and acknowledge your order and send you an order confirmation (“Order Confirmation”). For this reason, you agree that even after you receive an Order Confirmation we may cancel your order without penalty. Please be aware that any statements made by our customer service representatives or salespeople are non-binding in nature. We reserve the right to refuse shipments of products to you and to cancel any orders for any reasons at any time.
Payment
Lively Mood may allow you to purchase products or purchase access to portions of our Site. When making a purchase you will be prompted to input your credit card information or pay through a third party payment portal. You agree that we may charge full amount listed at checkout to your credit card including taxes and other fees. If you have signed up for a recurring payment, YOU HEREBY AGREE AND AUTHORIZE US TO BILL YOU ON A MONTHLY BASIS AND AGREE THAT NO ADDITIONAL CONSENT IS REQUIRED BY YOU TO CHARGE YOUR PREFERRED PAYMENT METHOD AUTOMATICALLY EACH MONTH. Your credit card information will be shared with our third party payment processor. By purchasing anything from our Site you also agree to the terms and conditions of our third party payment processor. Please be aware that all payment information will be stored and secured by the payment processor and not us.
- Termination
You may terminate this Agreement by notifying us at [email protected]. Upon termination you will not be entitled to any refunds or proration of payments made except as stated in this Agreement. We may terminate your access to the Site if we determine that: (1) you have violated any applicable laws while using our Site; (2) If you have violated this Agreement or any other of our Site policies; or (3) if we believe that any of your actions may harm the Lively Mood Site or our business interests, at our sole decision or discretion. In the event of termination, we will strive to provide you with a timely explanation; however, we are not required to do so.
- Returns and Refunds
At Lively Mood we want you to be satisfied with our products and any services offered. Therefore, we offer a ten (10) day money back guarantee for any unused and unopened products. Within ten days of placing your order, if you are unsatisfied with your product please contact us. After such time has elapsed from the purchase date, we will be unable to issue you a refund. If you require a refund for anything purchased from our Site within the refund period please contact us at [email protected]. For any purchases you must contact us before a refund may be issued. Please be aware that we while we will generally honor all refund requests, we reserve the right to deny you a refund if we believe you have misused our Site, behaved in a way that harms our company, used our products, or if you have violated this Agreement. Although refunds may be processed upon request, it may take some time before your refund is credited to your billing account.
- Chargebacks
If we believe that you have participated in a fraudulent chargeback we will pursue our claims against you to the fullest extent allowed by law. We will forward your information to the applicable law enforcement agency and your fraudulent chargeback may result in either a civil fine or jail time.
- Taxes
Depending on the laws of your jurisdiction you may be taxed for any payments or purchases. In the event that we do not collect the applicable taxes, you agree that you are still responsible for any applicable taxes. You understand that we cannot offer you tax advice and you agree to seek tax advice from your tax professional. Although no taxes may be collected by us you agree that you will pay any applicable taxes or fees to the tax agencies having jurisdiction over you. You agree that we are not responsible for collecting, transmitting, or advising on taxes, duties, or other levies by the government regarding your purchases.
- Product Disclaimer
LIVELY MOOD EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY DAMAGE, LOSS OR INJURY ARISING OUT OF: THE ACTIVITIES OF ANY VENDORS AND ANY LOSS OR INJURY ARISING OUT OF YOUR PURCHASE OR USE OF ANY PRODUCTS. The products offered via the Site are provided for your private, personal, and non-commercial use only.
- Shipping
At checkout you will be able to select from multiple shipping options. Shipping is available for Europe, the US, and other locations as listed. Prices for each location may vary. For generally sized items, standard shipping times will apply. As we do not transport the products we cannot guarantee shipping times. Before we can ship your order, Lively Mood must prepare your product and ensure quality control. We recommend you check all shipments immediately once you have received them. If you have any issues with your shipment, please contact us at [email protected].
Risk of Loss
All items purchased through the Site are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon tender of the item to the third party shipping carrier.
- Product Issues, Availability, and Pricing
As our Site multiple products, it is possible that some of the products listed on our Site may be incorrectly priced, improperly labeled, or may be unavailable. Additionally, other errors may be displayed on the product page. Although we try to keep all products on our Site available and on hand, there may be times where such products are unavailable. Where you have ordered an unavailable product we will contact you and inform you that the product is unavailable, if you wish to continue with your purchase, your credit card will be charged and your order will be shipped to you once the product becomes available. Please be aware that if you purchase a currently unavailable product there may be a significant delay before you receive such product.
Where a product’s correct price is less than our stated price, you agree that we may charge you the lower price for the purchased product. If a product’s correct price is higher than the price stated on our Site, we will normally, at our discretion, either contact you for instructions before dispatching the product, or reject your order and notify you of such rejection. You agree that we are not obligated to provide you any products at an incorrect lower price, if the pricing error is obvious and unmistakable and could have reasonably been recognized by you as a pricing error. Please be aware that pricing on any products may change at any time.
- Product Photos and Sizing
Please be aware that all photos of any products sold on Lively Mood are for illustrative purposes only. Although we use reasonable best efforts to insure that our products are almost entirely similar to the photos offered on our Site, it is possible that some photos shown on our Site may not be entirely representative of the actual product. The final products received by you may vary slightly in color, size, look, finish, or style. Additionally, you should be aware that all sizing is approximate and not exact.
- Limitation of Liability; Representations and Warranties
USE OF THIS SITE AND ALL PRODUCTS AND ITEMS, ARE AT YOUR EXCLUSIVE RISK, AND THE RISK OF INJURY FROM THE FOREGOING RESTS EXCLUSIVELY WITH YOU.
- EXCEPT FOR ANY WARRANTIES AS EXPRESSLY PROVIDED HEREIN THE SITE, ANY SERVICES, ALL PRODUCTS AND ITEMS SOLD ON Lively Mood ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
- Lively Mood DOES NOT WARRANT THAT: (1) THIS SITE, ANY SERVICES, AND PRODUCTS OR ITEMS OFFERED FOR SALE ON THE SITE, WILL BE UNINTERRUPTED OR ERROR FREE; (2) DEFECTS OR ERRORS IN THIS SITE, ANY SERVICES, AND PRODUCTS OR ITEMS OFFERED FOR SALE ON THE SITE, WILL BE CORRECTED; (3) THIS SITE, ANY SERVICES, AND PRODUCTS OR ITEMS OFFERED FOR SALE ON THE SITE, WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS; OR (4) ANY INFORMATION CONTAINED IN THIS SITE, Lively Mood CONTENT AND PRODUCTS OR ITEMS OFFERED FOR SALE ON THE SITE, WILL BE ACCURATE OR RELIABLE.
To the extent permitted by applicable law, we (including OUR officers, directors, agents, AFFILIATES and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from your use of the Site or any of its related services WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you. In the event that your jurisdiction does not allow us to exclude all liability, you agree that our total liablity to you will not exceed the total amount you have spent on your purchases via the site OR $100 USD WHICEVER IS GREATER. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by Lively Mood’s negligence or that of any of its officers, employees or agents; (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
- Release
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE. YOU RELEASE US FROM ANY LIABILITY RELATING TO ANY Lively Mood CONTENT, PRODUCTS SOLD, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST US OR ANY SUCH THIRD PARTIES.
- Indemnity
You agree to defend, indemnify and hold harmless Lively Mood , its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:
- your use of and access to the Lively Mood Site;
- your violation of any term of this Agreement; and
- any claim that your actions harmed a third party
This defense and indemnification obligation will survive this Agreement and your use of the Lively Mood Site. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
- Copyrights
We take copyright infringement very seriously, and we shall comply with the Digital Millennium Copyright Act. If you live within the US or own any copyrighted material within the US and believe that your copyright has been infringed, please send us a message which contains:
- The name of the party whose copyright has been infringed, if different from your name.
- The name and description of the work that is being infringed.
- The location on our website of the infringing copy.
- A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
- A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification and send it to our Copyright Agent: Copyright Agent of Lively Mood, [email protected].
- Choice of Law
This Agreement shall be governed by the laws in force in the state of Arizona. The offer and acceptance of this contract is deemed to have occurred in the state of Arizona. .
- Forum
By using this Site, you agree that: (1) any claim, dispute, or controversy you may have against us, Lively Mood or the Site arising out of, relating to, or connected in any way with this Agreement shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”); (2) the claim or dispute must be brought within one (1) year of the first date of the event giving rise to such action and the arbitration shall be held in Chandler, AZ, or at such other location as may be mutually agreed upon by you and Lively Mood; (3) the arbitrator shall apply Arizona law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (4) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your and/or Lively Mood ’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (5) both parties will bear their own costs of representation and filing for the dispute; (6) where possible and allowed for under the AAA Rules and Procedures Lively Mood shall be entitled to appear electronically or telephonically for all proceedings; and (7) with the exception of subpart (4) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (4) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor Lively Mood shall be entitled to arbitrate their dispute. For more information on AAA and its Rules and Procedures, End Users may visit the AAA website at https://www.adr.org. In the event that any portion of this arbitration provision is found to be unenforceable or void, both parties agree to settle any disputes arising out of this Agreement in a court of competent jurisdiction located in Maricopa County, AZ
- Class Action Waiver
You and Lively Mood agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. You agree that you will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action.
- Force Majeure
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
- Severability
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement or any other agreement you may have with Lively Mood are deemed to conflict with each other’s operation, you agree that Lively Mood shall have the sole right to elect which provision remains in force.
- Non-Waiver
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
- Survival
All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability. You agree that we are not required to provide you with access to our Site and may terminate our Site at any time and for any reason.
- Age
All users who access the Site must be 18 years of age or older.
- Assignment
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
- Amendments
We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email you. You may refuse to agree to the amendments, but if you do, you must immediately cease using our Site.
- Electronic Communications
The communications between you and Lively Mood use electronic means, whether you visit the Site or send Lively Mood e-mails, or whether Lively Mood posts notices on the Site or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Lively Mood in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Lively Mood provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- California Users
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Lively Mood must be sent to our agent for notice to: [email protected]
Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Last Updated: November 7, 2016
