These Terms of Service (“Terms”) govern your use of the Kymdan America Inc. (“Kymdan”) website (“Site”), and also Kymdan products you may purchase (“Products”), any Kymdan mobile application, application programming interfaces, and other services offered by Kymdan, as well as services offered through third parties integrating Kymdan functionality (“Services”). Kymdan (“we” or “us”) provides the Site, Products and Services. “You” refers to you as a user of the Site, Products or Services.
BY USING THE SITE OR SERVICES, OR PURCHASING KYMDAN PRODUCTS, YOU ARE AGREEING TO THESE TERMS. PLEASE READ THEM CAREFULLY.
You must be at least 18 years old to use the Site or the Services or to purchase Products. If you are under the age of majority in your state of residence, a minor, your parent or legal guardian must agree to these Terms on your behalf and you may only access and use the Site and Services with permission from your parent or legal guardian.
2. Terms of Sale
Offers to Purchase, Sale and Shipping: The Kymdan website describes Products for which Kymdan invites you to make an offerof purchase. The description or depiction of Products on the website does not constitute an offer by Kymdan to sell, and Products may or may not be available for sale when you submit an offer to purchase. If the items are available, and if Kymdan accepts your offer to purchase, a sale contract will arise when Kymdan accepts your offer in California. When your offer is accepted, the price you are charged for your purchase (an “Order”) will, unless otherwise expressly stated by Kymdan, include applicable shipping and processing charges and fees (“Fees”). Fees cover the relevant costs of processing your Order; costs of handling and packing any products; and costs of delivering or providing the purchased products and services to you, including insurance during shipping. After Kymdan has received payment, Kymdan will arrange for a shipping company to deliver them to you. The products are of Vietnamese origin, manufactured in Vietnam using components and materials from various countries. Kymdan does not guarantee dates of delivery. It will provide an estimated delivery date when your Order is placed, but it makes no promise of date of delivery and will have no liability in the event delivery is delayed for any reason, with or without any fault on the part of the shipping company or others.
Caution: For safety reasons, we only use a door-to-door delivery method for our products.
Inaccuracy Disclaimer: From time to time, there may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have submitted your Order). If you do not wish to continue with your Order after pricing or other information has been corrected, please contact us right away and we will work with you to cancel or return your Order.
Return Policy: You are allowed to return or exchange a KYMDAN mattress (Special Deluxe, Special Deluxe Pillow Top) provided you have not misused the mattress and pay for shipping and you ship the mattress using UPS or other commercial carrier of comparable reputation and standing within 30 days of receipt to Kymdan America, Inc., 16737 Parkside Ave., Cerritos, CA 90703. Upon receipt of the mattressour company will confirm that the mattress has not been misused. If we confirm this, we will then exchange it for a new mattress if that was your request, or instead process a refund if you have requested a refund. The amount of the refund will be the original purchase price reduced by 30% to reflect restocking costs and your initial handling or use of the mattress, minus any shipping charge for the return of the mattress that you have not already paid, minus the cash value of any promotional gifts that you received for purchasing the mattress. No exchanges or returns will be acceptedafter 30 days have passed following your receipt of the mattress.
We do not accept returns of mattress covers or pillows.
LIMITED WARRANTY – REFUND OR REPLACEMENT OF MATTRESSES ONLY, LESS CHARGES:
MATTRESSES (Special Deluxe, Special Deluxe Pillow Top) – 15 YEARS FROM ORIGINAL PURCHASE: If you find and report to Kymdan at firstname.lastname@example.org within 15 years from the original date of purchase of a KYMDAN mattress that the mattress has flattened, stiffened, hardened, crumbled or decayed with no misuse on your part, and the claimed defect is confirmed by Kymdan, then Kymdan will replace the mattress provided you pay a usage charge to reflect the period of use based upon the current retail price at the time you report the defect and the number of months left on the warranty, subject to a minimum usage charge of 20% of the then current retail price plus deliverycharges.
Flattened, stiffened, hardened, crumbled or decayed means that the mattress can no longer return to its original shape immediately after standing, sitting or laying on the mattress for an extended period.
The mattress warranty will be invalidated if:
i. The mattress is used on a base not recommended or approved by Kymdan for the mattress purchased.
ii. The mattress is used on a slatted base which has slats more than 3cm (1.18 inches).
iii. The mattress is used on any type of damaged or unsupportive base.
KYMDAN Mattresses (Deluxe, Special Deluxe Pillow Top) ARE NOT COVERED UNDER WARRANTY for:
• The mattress core turns yellow (yellowing is a natural process for latex.)
• Use or maintenance of that did not comply with the User Guide instructions provided in the warranty certificate (see user guide instructions).
• Damage due to any other misuse, including but not limited to:
o Being exposed to sunlight (due to the deterioration effect of sunlight’s ultraviolet light on natural latex).
o Soiling or odors from food, liquids or dirt.
o Damage dueto application of excessive forces of 200kg/dm² in any form.
o Damage due to exposure to heat sources including, but not limited to irons, hot-air hair dryers, heaters, heated blankets, etc.
This mattress warranty is also invalidated if Kymdan finds that the mattress has been misused or used in any other manner that is not intended.
When a mattress is replaced, the new mattresswill have a warranty period that is the unexpired warranty period of the original purchase.
Kymdan reserves the right to refuse service when any reported defect is due to causes other than faulty materials or workmanship, or if the item is soiled or in an insanitary condition.
When repairing or replacing items under this warranty, Kymdan reserves the right to substitute alternative materials, or models, should the original no longer be available and cannot undertake to match items not under complaint, with any substitute fabric used.
KYMDAN MAKES NO WARRANTY FOR
• Any pillow types (KYMDAN Pillows, KYMDAN SoftTouch Bolsters)
• Smaller custom sized mattresses (mattresses with a length and width less than 140cm/55.18in)
• KYMDAN Mattress Covers
• KYMDAN Bed sheets
• KYMDAN Mattress Protectors
• KYMDAN Towels
Warranty Limitations; Disclaimer and Limitations on Our Liability
YOU USE THE KYMDAN PRODUCTS, WEBSITE AND SERVICES AT YOUR OWN RISK. EXCEPT AS STATED ABOVE ALLOWING CERTAIN REPLACEMENTS OR REFUNDS, THE PRODUCTS, SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
OUR COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SITE OR SERVICES, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SITE OR SERVICES. OUR COMPANY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICES; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR SERVICES; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE OR SERVICES BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SITE OR SERVICES.
YOU UNDERSTAND AND AGREE THAT ANY PRODUCTS YOU MAY PURCHASE ANDMATERIAL OR INFORMATION YOU MAY DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE USE OF THE SITE OR FROM OUR COMPANY IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUR COMPANY OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE DIRECT OR INDIRECT LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR RELATING TO THE SITE, PRODUCTS OR SERVICES, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.
KYMDAN MATTRESSES AND PILLOWS ARE DESIGNED FOR USE BY ADULTS. TO AVOID ACCIDENTAL INJURY OR DEATH OR SUFFOCATION YOU SHOULD NOT USE THEM FOR INFANTS OR TODDLERS. SEE ALSO CLAUSES 12 AND 14 BELOW.
KYMDAN MATTRESSES AND PILLOWS CONTAIN LATEX, RAYON, COTTON AND POLYESTER AND SHOULD NOT BE USED BY PEOPLE ALLERGIC OR SENSITIVE TO LATEX, RAYON, COTTON OR POLYESTER. KYMDAN MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND CONCERNING THE SUITABILITY OF ITS MATTRESSES OR PILLOWS FOR USE BY INDIVIDUALS WITH LATEX, RAYON, COTTON OR POLYESTER ALLERGY OR SENSITIVITY, AND KYMDAN WILL HAVE NO LIABILITY WHATSOEVER IN THE EVENT OF AN IRRITATION, REACTION OR OTHER CONDITION CONCERNING LATEX, RAYON, COTTON OR POLYESTER. SEE ALSO CLAUSES 12, 13 AND 14 BELOW.
KYMDAN MATTRESSES AND PILLOWS ARE NOT MEDICAL DEVICES AND ARE NOT DESIGNED FOR PEOPLE WITH BACK HEAD, NECK OR BACK INJURIES, COND ITIONS OR DISEASES. IF YOU HAVE SUCH AN INJURY, CONDITION OR DISEASE, YOU SHOULD SEEK THE ADVICE OF A MEDICAL PROFESSIONAL CONCERNING WHAT TYPE OF MATTRESS OR PILLOW YOU SHOULD USE. KYMDAN MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND CONCERNING THE SUITABILITY OF ITS MATTRESSES OR PILLOWS FOR USE BY INDIVIDUALS WITH INJURIES, CONDITIONS OR DISEASES AND WILL HAVE NO LIABILITY WHATSOEVER IN THE EVENT OF SUCH INJURY, CONDITION OR DISEASE. SEE ALSO CLAUSES 12 AND 14 BELOW.
Special Offers: Occasionally we will offer special promotions to our customers that we refer to as “special offers.” This can include a gift with purchase, manufacturer offers, or other promotional activity associated with a product purchase. These offers may be for a limited time only.
3. Additional Terms
Some of our Services have additional terms and conditions (“Additional Terms”). Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service. By using that Service, you agree to the Additional Terms.
4. Acceptable Use of the Site and Services
You are responsible for your use of the Site and Services, and for any use of the Site or Services made using your account. Our goal is to create a positive, useful, and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us. When you use the Site or Services, you may not:
• violate any law or regulation;
• violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
• post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
• send unsolicited or unauthorized advertising or commercial communications, such as spam;
• engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Site or Services;
• transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
• stalk, harass, or harm another individual;
• impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
• use any means to scrape or crawl any Web pages contained in the Site;
• attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Site or Services;
• attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Site or Services; or
• advocate, encourage, or assist any third party in doing any of the foregoing.
5. User Content
The Site and some of our Services allow you to upload, submit, store, send, or receive content and data (“User Content”). You retain ownership of any intellectual property rights that you hold in that User Content. In other words, you own your personal data.
When you upload, submit, store, send, or receive User Content to or through the Site or Services, you give us permission to reproduce and use your User Content as follows: you grant to us and those we work with a license to use, host, store, reproduce, modify, create derivative works (such as translations, adaptations, or other changes we make so that User Content works better with the Site and Services), publicly perform, publicly display, and distribute your User Content. This license is for the limited purpose of operating, promoting, and improving the Site and Services, and to develop new Services. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. This license is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. We may exercise our rights under this license anywhere in the world. Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Site and Services. In general, however, we will only need to use your User Content for as long as you choose to store it with us using the Site or Services.
You promise that:
• you own all rights to your User Content or, alternatively, that you have the right to give us the rights described above; and
• your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.
We may refuse to accept or transmit User Content for any reason. We may remove User Content from the Site or Services for any reason.
7. Copyright and Intellectual Property Policy
We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:
• Your address, telephone number, and email address.
• A description of the copyrighted work that you claim has been infringed.
• A description of where the alleged infringing material is located.
• A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
• A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
Kymdan America, Inc. Customer Service Department, reachable at email@example.com.
Copyright infringement notices should go to our Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section your notice may not be valid.
If you believe the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use such content, you may submit a counter-notice to the address listed above containing the following information:
• Your physical or electronic signature;
• Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
• Your name, physical address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Los Angeles, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes your personal information. By submitting a counter-notification, you consent to having your information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled. If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.
10. Changes to the Site or Services
We enhance and update the Site and Services often. We may change or discontinue the Site or Services at any time, with or without notice to you.
We reserve the right to not provide the Site or Services to any person. We also reserve the right to terminate any user’s right to access the Site or Services at any time, in our discretion. If you violate any of these Terms, your permission to use the Site and Services automatically terminates.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS OUR COMPANY AND ITS AFFILIATES FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, PROCEEDINGS, DEMANDS, LOSSES, DAMAGES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES AND LEGAL COSTS) OF ANY KIND OR NATURE, ARISING FROM OR RELATING TO, ANY ACTUAL OR ALLEGED BREACH OF THESE TERMS BY YOU OR ANYONE USING YOUR ACCOUNT. IF WE ASSUME THE DEFENSE OF SUCH A MATTER, YOU WILL REASONABLY COOPERATE WITH US IN SUCH DEFENSE.
13. Arbitration Agreement & Waiver of Certain Rights
You and Kymdan agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and Kymdan hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes arising between you and Kymdan relating to these Terms, the Products or the Offerings (each a “Claim”), including any Claim based upon tort, or for personal injury or death or any damages or equitable or legal relief, shall be submitted for binding arbitration in Orange County, California in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
You further agree that Kymdan’s Vietnamese parent company, Saigon-Kymdan Rubber Stock Company (“Saigon-Kymdan”), is an intended third party beneficiary of this Section 13 and shall be entitled to compel your compliance with this Section 13, including arbitration with Saigon-Kymdan of any and all controversies, claims, counterclaims or other disputes relating to these Terms, the Products or the Offerings under the same rules and on the same terms and conditions as described in this Section 13. Kymdan confirms that it has been authorized by Saigon-Kymdan to act as its agent for the limited purpose of agreeing to this Section 13 and binding Saigon-Kymdan to this Section 13, including arbitration of any and all controversies, claims, counterclaims or other disputes relating to these Terms, the Products or the Offerings under the rules and on the terms and conditions as described in this Section 13. Kymdan is not an agent of Saigon-Kymdan for any purpose other than binding Saigon-Kymdan to this Section 13.
Neither you nor Kymdan, nor Saigon-Kymdan may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be resolved on a class or representative basis.
If any provision of this Section 13 is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section 13 shall continue in full force and effect. No waiver of any provision of this Section 13 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of these Terms. This Section 13 will survive the termination of your relationship with Kymdan.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR KYMDAN WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
14. Other Provisions
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
These Terms will be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws rules or provisions.
You agree that any action of whatever nature arising from or relating to these Terms, the Site, or Services will be filed only in the state or federal courts located in Orange County, California. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action. This provision shall not limit or reduce the requirement to submit all Claims to binding arbitration as specified in clause 134.
If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.
The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.
We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.
15. Changes to these Terms
From time to time, we may change these Terms. If we change these Terms, we will give you notice by posting the revised Terms on the Site. Those changes will go into effect on the Revision Date shown in the revised Terms. By continuing to use the Site or Services, you are agreeing to the revised Terms.
PLEASE PRINT A COPY OF THESE TERMS FOR YOU RECORDS AND PLEASE CHECK THE SITE FREQUENTLY FOR ANY CHANGES TO THESE TERMS.