Terms & Conditions
Last updated 8.17.2023
TERMS AND CONDITIONS OF SALE
PLEASE READ THESE TERMS CAREFULLY, THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, INCLUDING, WITHOUT LIMITATION, TERMS AND CONDITIONS RELATED TO WARRANTY DISCLAIMERS INCLUDING MEDICAL DISCLAIMERS, LIMITATION OF LIABILITY, LIMITATIONS ON PERIODS FOR ASSERTING ANY CLAIMS, INDEMNIFICATION, SUBSCRIPTION TO AND PURCHASE OF PRODUCTS, GOVERNING LAW.
ALL ORDERS (“ORDERS”) FOR THE PURCHASE OF PRODUCTS AND GOODS (“PRODUCTS”) BY A PURCHASER (“BUYER”, “YOU”, “YOUR”) FROM DIASPORA TEA & HERB COMPANY, LLC D/B/A RISHI TEA & BOTANICALS (“SELLER”, “US”, “WE”, “OUR”), INCLUDING ORDERS MADE THROUGH THE SELLER’S WEBSITE (THE “SITE”), INCORPORATE AND ARE GOVERNED BY THE FOLLOWING TERMS AND CONDITIONS OF SALE ("TERMS"). BY PLACING ANY ORDER BUYER ACCEPTS AND SHALL BE BOUND BY THESE TERMS. IN THE CASE OF ANY CONFLICT BETWEEN THESE TERMS AND ANY ORDER, THESE TERMS WILL CONTROL.
1. Formation of Contract
An Order is deemed by Seller to be an offer to purchase, which Seller may accept or reject at its sole discretion. Seller's acceptance of an offer to purchase is binding on Seller only if made by written instrument signed by the Seller or, if not by written instrument, by shipment of the Products ordered (and acceptance by shipment shall only be binding as to the portion of the order actually shipped by Seller). Any automatic or computer-generated response to an Order by Seller’s website or by Seller's internal electronic data exchange system or otherwise shall not be deemed acceptance of an Order.
2. Rejection of Additional Terms
These Terms, along with the face of any Order, constitute the entire agreement between Seller and Buyer. Any proposal or other document provided by the Seller that includes different or additional terms that vary from these Terms are objected to and disallowed.
All shipments will be billed at prices in effect at the date of fulfillment of the Order unless otherwise stated. All prices for products are based on the quantities ordered, and any change in the quantities may affect the price. No discounts will be allowed unless specifically agreed to in writing by Seller. Notwithstanding previous instances of Seller's notice to customers regarding price changes, prices are subject to change at any time without notice. Product specifications, designs, and packaging may change without notice. Seller may substitute Products of comparable quality for Products listed in Buyer's Order.
4. Payment Terms
For consumer orders all payments must be made via credit card or valid Rishi Tea Gift Card. Wholesale payment terms are prepay by ACH or credit card, unless otherwise specified in writing. On any past due invoice, Seller may impose interest of 2.0% per month or the highest rate permitted by law (whichever is less). In the event of Buyer's default, Seller may recover costs, fees, and expenses, including but not limited to recovery of attorney's fees, court costs and fees, and collections costs.
5. Cost of Delivery, Taxes, And Other Charges
Buyer shall pay the costs of delivery of the Products unless otherwise agreed to specifically in writing by Seller. Prices do not include sales, use, excise or similar taxes, or other charges. Any such tax or charge that Seller is required to pay, or to collect and remit, to any Government (national, state or local) and that are imposed on or measured by the sale will be added to the invoice price based on the applicable rates in effect at the time of shipment. If Seller prepays shipping, insurance, duties, or other related charges, Buyer shall reimburse Seller promptly for such charges.
6. Transfer of Property And Risk Of Loss
Seller retains the right and title to the Products sold to Buyer until Seller is paid in full for Products. Buyer shall obtain the right and title to the Products upon payment to Seller of the purchase price and any taxes, excises or other charges. Unless otherwise specified in writing, all domestic shipments shall be delivered F.O.B. Seller's facility ("Domestic Delivery Point"), and all shipments to locations outside the United States shall be delivered Ex Works Seller's facility ("International Delivery Point") in accordance to the Incoterms 2020. The risk of loss, including without limitation the risk of loss, theft, damage, or destruction of the products, transfers to Buyer at the respective Domestic Delivery Point or International Delivery Point.
All scheduled delivery dates are estimates based on a normal workload, and all deliveries are subject to change without liability to the Seller. Seller will use commercially reasonable effort to make shipments as scheduled and may make partial shipments unless otherwise specified by Buyer. Seller will not be liable for any delays incurred due to causes beyond its reasonable control, including acts of God, actions by any governmental authority, terrorism, fires, floods, windstorms, explosions, riots, protests, natural disasters, wars, sabotage, labor problems (including lockouts, strikes, and slowdowns), inability to obtain power, utilities, materials, labor, equipment or transportation, epidemics or pandemics (or the worsening thereof) or court injunction.
8. No Set-off
Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Seller shall be made without Seller's prior, express written approval.
9. Disclaimer of Warranties
Statements on the Site have not been evaluated by the Food and Drug Administration. Our products are not intended to diagnose, treat, cure, or prevent any disease. The information provided on this website, product labels, or in any other form of communication is for educational purposes only and should not be considered as a substitute for professional medical advice. We recommend consulting with a healthcare professional before using any of our tea and herb products, especially if you have a medical condition, are pregnant or nursing, or are taking any medication. Botanicals and tea have a long history of human use in foods, beverages and traditional medicines and these descriptions of human’s historical use of botanical ingredients is indeed a historical reference and cultural history guide only. We don’t intend to diagnose, treat nor cure any illness or disease.
SELLER MAKES NO WARRANTIES OR REPRESENTATIONS TO BUYER OR ANY OTHER PERSON OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, AND SELLER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PRODUCTS SOLD HEREUNDER ARE SOLD "AS IS". TO THE EXTENT THIRD-PARTY CERTIFICATIONS OR DESIGNATIONS RELATE TO THE PRODUCTS, SELLER DOES NOT MAKE ANY WARRANTIES RELATED TO THE CERTIFICATIONS OR DESIGNATIONS AND STATES THAT SUCH CERTIFICATIONS OR DESIGNATIONS MAY NOT BE TRANSFERABLE IF BUYER REPACKAGES OR MANIPULATES THE PRODUCT IN ANY MANNER. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES.
10. Limitation of Liability
NO CLAIM BY BUYER OF ANY KIND, WHETHER AS TO QUALITY OR AMOUNT OF PRODUCT DELIVERED OR NON-DELIVERY, SHALL BE GREATER IN AMOUNT THAN THE PURCHASE PRICE FOR THE PRODUCTS ACTUALLY RECEIVED BY SELLER AND IN RESPECT OF WHICH THE DAMAGES ARE CLAIMED.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS OF BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR LOSS OF DATA, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR DAMAGES THAT COULD HAVE BEEN REASONABLY FORESEEN. [Buyer shall indemnify and hold Seller harmless for any claims arising from or relating to Buyer's use or sale of Products.]
YOU AGREE TO PROMPTLY NOTIFY SELLER IN WRITING IF YOU BELIEVE YOU HAVE ANY CLAIM AGAINST SELLER, AND, IN ANY EVENT, YOU AGREE THAT ANY CLAIM NOT BROUGHT WITHIN ONE YEAR AFTER IT ARISES (OR SUCH SHORTER PERIOD UNDER APPLICABLE STATUTES OF LIMITATION) SHALL BE WAIVED AND RELEASED.
SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES OR WARRANTIES. ACCORDINGLY, SOME OF THE EXCLUSIONS AND LIMITATIONS ABOVE MAY NOT APPLY.
Buyer shall inspect the Products promptly upon receipt for non-conformity. Failure by Buyer to provide Seller with written notice of a claim within 5 days from the date of delivery or, in the case of non-delivery, from the date fixed for delivery, shall constitute a waiver by Buyer of all claims with respect to such Products. SELLER'S SOLE OBLIGATION FOR A REMEDY TO BUYER SHALL BE REPLACEMENT OF NON-CONFORMING PRODUCTS.
Buyer may not return Products without Seller's express written permission, which may be given or withheld in Seller’s sole discretion. If Seller permits a return of Products, all shipments of returned Products must be marked with the assigned Sales Order Return (SOR) number indicating cause and nature of any Product defect. SOR numbers are valid for 30 days from the date Seller provides Buyer with the SOR number (the "Return Period") and all associated Products must be received within the Return Period. If Seller does not receive all information it requires within the Return Period, Seller may return Products to Buyer at Buyer's sole expense. Final disposition of return credit is made by Seller in its sole discretion based on Seller's evaluation. Buyer may not make any deduction for returned Products for the remittance until a credit memo has been issued by Seller. All returned Products must be shipped fright prepaid and accompanied with copies of the original invoice.
13. Seller's Rights
If Buyer should fail in any manner to fulfill these Terms, Seller may defer further shipment until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Seller.
14. Governing Law and Venue
These Terms shall be construed, interpreted, and governed according to the laws of the State of Wisconsin, without giving effect to its principles of conflicts of laws. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any claim arising from these Terms shall be brought in the state or federal courts based in Milwaukee County, Wisconsin. Seller consents to personal jurisdiction and waives all objections to jurisdiction and venue in such courts.
15. Compliance with Laws; Export Laws
Buyer and Seller shall comply with all applicable international, national, state, regional, and local laws and regulations with respect to their performance of these Terms. If applicable, Buyer shall adhere to all applicable United States export laws and regulations with respect to the Products.
19. User Accounts
If you register for an online account with Seller on the Site, you are solely responsible for maintaining the confidentiality and security of the password and account and are fully responsible for all activities that occur under your password or account. You agree to immediately notify Seller of any unauthorized use of your password or account or any other breach of security.
If you provide information on the Site, you agree to (a) provide true, accurate, current, and complete information about yourself, and (b) maintain and promptly update such information to keep it true, accurate, current, and complete to the extent the Site facilitates such updates. If you provide any information that is false, inaccurate, outdated or incomplete, or Seller has reasonable grounds to suspect that such information is false, inaccurate, outdated or incomplete, Seller has the right to suspend or terminate your account and prohibit or refuse any and all current or future use of the Site (or any portion thereof) by you.
20. User Content
You may have the option to post content, where applicable, on the Site ("User Content"). All User Content, regardless of method posted, is your sole responsibility. Seller cannot guarantee that other users will not misuse the User Content that you share. If you have any User Content that you would like to keep confidential and/or do not want others to use, do not post it to the Site.
By posting any User Content on the Site, you hereby grant Seller a royalty-free, fully paid up, worldwide, perpetual, irrevocable, non-exclusive and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, combine with other works, create derivative works from, distribute, perform, edit and display such User Content (in whole or part) and/or to incorporate it in other works in any form, media, or technology now known or later developed. You represent and warrant that: you own the User Content posted by you on or through the Site or otherwise have the right to grant the license set forth above; and the posting of your User Content on or through the Site does not violate the privacy rights, intellectual property rights, publicity rights, contract rights or any other rights of any person. Seller shall not be liable for any use or disclosure of any User Content you post to or through the Site.
SELLER SHALL BE ENTITLED TO UNRESTRICTED USE OF ANY USER CONTENT IT MAY RECEIVE FROM YOU AT OR THROUGH THE SITE, FOR ANY PURPOSE WHATSOEVER, COMMERCIAL OR OTHERWISE, WITHOUT COMPENSATION TO YOU.
You understand that by using the Site, you may be exposed to User Content created by others that is offensive, indecent, or objectionable. Seller does not endorse or have control over the User Content. We make no representations or warranties, express or implied as to the User Content or the accuracy and reliability of the User Content or any other material or information that you may access through the Site that is provided by third parties. We assume no responsibility for monitoring any the Site for inappropriate submissions or conduct. We have no obligation to modify or remove any inappropriate User Content. Notwithstanding the foregoing, Seller and its designees shall have the right to remove any User Content that violates these Terms or is otherwise objectionable, in our sole discretion.
21. Use of the Site
You are granted a limited, non-exclusive, revocable right to access and use the Site solely for personal, non-commercial use to receive products from Seller. This right does not include the right to, and you shall not (nor shall you facilitate, direct, or assist a third party to):
• Modify, reproduce, or resell any part of the Site’s content or data (excluding your personal information), or otherwise commercially exploit any of the Site’s content or data (even if that content or data is provided by a third party);
• Access, tamper with, or use non-public areas of the Site or Seller’s computer systems;
• Probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
• Access or search or attempt to access or search the Site by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Seller;
• Use any robot, spider, data miner, script, or other automated, semi-automated, or similar means (whether technological or human) to extract or gather data from the Site, or otherwise collect, gather, extract, scrape, or obtain any data or content from the Site for any commercial purpose other than obtaining products from Seller or your own personal, non-commercial use;
• Interfere with or disrupt, or attempt to do so, the access of any user, host, or network, including (without limitation) sending a virus, flooding, spamming, overloading, or mail-bombing the Site;
• Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the or Site;
• Attempt to hide or direct, facilitate or assist any third party in hiding your IP address to circumvent any of the restrictions in these Terms, including without limitation, if any IP address you have been assigned or used is blocked or dropped by Seller, you are hiding or switching your IP address to scrape or collect data and content from this Site, or you have received a cease and desist or other correspondence from Seller related to any activity in violation of these Terms that requires you to cease accessing or using the Site;
• Use the Site or any of its content in any manner other than the manner in which it is intended to be used, or in any way that interferes with its normal operations or with any other user’s use and enjoyment of the Site, unless you first obtain Seller’s express written consent;
• Upload, post, email or otherwise transmit any User Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
• Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
• Upload, post, email or otherwise transmit any User Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
• Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are designated for such purpose; or
• Use the Site or its content for any purpose prohibited or restricted by law Except for the limited right expressly granted to you in these Terms, Seller and its licensors expressly reserve all other rights and licenses.
22. Digital Millennium Copyright Act
If you have reason to believe that material on the Site infringes your copyright, please send a notice by e-mailing us requesting that the infringing material be removed. The notice must contain the following information:
• A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright;
• A description of the work claimed to have been infringed, or a representative list of such works if the notice is intended to cover multiple works on the Site;
• Identification of the allegedly infringing material and where the material is located on the Site;
• Your contact information, including your name, address, telephone number, and email address;
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the notice is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the exclusive right that has allegedly been infringed.
Seller’s designated agent for notification is Jenny Daniels, who may be contacted at:
Although Seller reserves the right to remove any material that it believes in good faith to be infringing material that is used without authorization by any or user of the Site, we are not obligated to do so except in accordance with the Digital Millennium Copyright Act. We also reserve the right to suspend or delete the account of any offender.
No waiver by Seller of any of any term in these Terms or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case. No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these Terms.
If any clause or portion hereof shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining clauses or portions shall remain in full force and effect.
Buyer may not assign any of its rights or delegate any of its obligations under these Terms without Seller’s prior written consent. Any purported assignment or delegation in violation of this provision is null and void.
Online reselling on Amazon.com or other marketplaces and websites is unauthorized without expressed written permission.
The paragraph headings are for convenience only and shall not be used in interpreting or construing these Terms.