Terms of Service
OVERVIEW
Welcome to King of Sparklers! The terms “we”, “us” and “our” refer to King of Sparklers. King of Sparklers operates this store and website, including all related information, content, features, tools, products and services in order to provide you, the customer, with a curated shopping experience (the “Services”). King of Sparklers is powered by Shopify, which enables us to provide the Services to you.
The below terms and conditions, together with any policies referenced herein (these “Terms of Service” or “Terms”) describe your rights and responsibilities when you use the Services.
Please read these Terms of Service carefully, as they include important information about your legal rights and cover areas such as warranty disclaimers and limitations of liability.
By visiting, interacting with or using our Services, you agree to be bound by these Terms of Service and our Privacy Policy https://www.kingofsparklers.com/pages/privacy-policy. If you do not agree to these Terms of Service or Privacy Policy, you should not use or access our Services.
SECTION 1 - ACCESS AND ACCOUNT
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, and you have given us your consent to allow any of your minor dependents to use the Services on devices you own, purchase or manage.
To use the Services, including accessing or browsing our online stores or purchasing any of the products or services we offer, you may be asked to provide certain information, such as your email address, billing, payment, and shipping information. You represent and warrant that all the information you provide in our stores is correct, current and complete and that you have all rights necessary to provide this information.
You are solely responsible for maintaining the security of your account credentials and for all of your account activity. You may not transfer, sell, assign, or license your account to any other person.
SECTION 2 - OUR PRODUCTS
We have made every effort to provide an accurate representation of our products and services in our online stores. However, please note that colors or product appearance may differ from how they may appear on your screen due to the type of device you use to access the store and your device settings and configuration.
We do not warrant that the appearance or quality of any products or services purchased by you will meet your expectations or be the same as depicted or rendered in our online stores.
All descriptions of products are subject to change at any time without notice at our sole discretion. We reserve the right to discontinue any product at any time and may limit the quantities of any products that we offer to any person, geographic region or jurisdiction, on a case-by-case basis.
SECTION 3 - ORDERS
When you place an order, you are making an offer to purchase. King of Sparklers reserves the right to accept or decline your order for any reason at its discretion. Your order is not accepted until King of Sparklers confirms acceptance. We must receive and process your payment before your order is accepted. Please review your order carefully before submitting, as King of Sparklers may be unable to accommodate cancellation requests after an order is accepted. In the event that we do not accept, make a change to, or cancel an order, we will attempt to notify you by contacting the e‑mail, billing address, and/or phone number provided at the time the order was made.
Your purchases are subject to return or exchange solely in accordance with our Refund Policy https://www.kingofsparklers.com/pages/return-refund-policy.
You represent and warrant that you are purchasing Sparkler Products either (a) for your own personal or household use, or (b) as a Commercial Buyer in accordance with Section 25.11. Export of Sparkler Products from the United States is prohibited without King of Sparklers's prior written consent and may be subject to federal export-control, hazardous-materials, and shipping regulations (including 49 C.F.R. Parts 171–180).
SECTION 4 - PRICES AND BILLING
Prices, discounts and promotions are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Unless otherwise expressly stated, posted prices do not include taxes, shipping, handling, customs or import charges.
Prices posted in our online stores may be different from prices offered in physical stores or in online or other stores operated by third parties. We may offer, from time to time, promotions on the Services that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.
You agree to provide current, complete and accurate purchase, payment and account information for all purchases made at our stores. You agree to promptly update your account and other information, including your email address, credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
You represent and warrant that (i) the credit card information you provide is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any.
SECTION 5 - SHIPPING AND DELIVERY
We are not liable for shipping and delivery delays. All delivery times are estimates only and are not guaranteed. We are not responsible for delays caused by shipping carriers, customs processing, or events outside our control. Once we transfer products to the carrier, title and risk of loss passes to you.
SECTION 6 - INTELLECTUAL PROPERTY
Our Services, including but not limited to all trademarks, brands, text, displays, images, graphics, product reviews, video, and audio, and the design, selection, and arrangement thereof, are owned by King of Sparklers, its affiliates or licensors and are protected by U.S. and foreign patent, copyright and other intellectual property laws.
These Terms permit you to use the Services for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Services without our prior written consent. Except as expressly provided herein, nothing in these Terms grants or shall be construed as granting a license or other rights to you under any patent, trademark, copyright, or other intellectual property of King of Sparklers, Shopify or any third party. Unauthorized use of the Services may be a violation of federal and state intellectual property laws. All rights not expressly granted herein are reserved by King of Sparklers.
King of Sparklers’s names, logos, product and service names, designs, and slogans are trademarks of King of Sparklers or its affiliates or licensors. You must not use such trademarks without the prior written permission of King of Sparklers. Shopify’s name, logo, product and service names, designs and slogans are trademarks of Shopify. All other names, logos, product and service names, designs, and slogans on the Services are the trademarks of their respective owners.
SECTION 7 - OPTIONAL TOOLS
You may be provided with access to customer tools offered by third parties as part of the Services, which we neither monitor nor have any control nor input.
You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of the optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new features through the Services (including the release of new tools and resources). Such new features shall also be deemed part of the Services and are subject to these Terms of Service.
SECTION 8 - THIRD-PARTY LINKS
The Services may contain materials and hyperlinks to websites provided or operated by third parties (including any embedded third party functionality). We are not responsible for examining or evaluating the content or accuracy of any third-party materials or websites you choose to access. If you decide to leave the Services to access these materials or third party sites, you do so at your own risk.
We are not liable for any harm or damages related to your access of any third-party websites, or your purchase or use of any products, services, resources, or content on any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products and services should be directed to the third-party.
SECTION 9 - RELATIONSHIP WITH SHOPIFY
[NOTE TO MERCHANT: This section accurately characterizes Shopify’s relationship with your store and should not be removed or modified.]
King of Sparklers is powered by Shopify, which enables us to provide the Services to you. However, any sales and purchases you make in our Store are made directly with King of Sparklers. By using the Services, you acknowledge and agree that Shopify is not responsible for any aspect of any sales between you and King of Sparklers, including any injury, damage, or loss resulting from purchased products and services. You hereby expressly release Shopify and its affiliates from all claims, damages, and liabilities arising from or related to your purchases and transactions with King of Sparklers.
SECTION 10 - PRIVACY POLICY
All personal information we collect through the Services is subject to our Privacy Policy, which can be viewed here [LINK], and certain personal information may be subject to Shopify’s Privacy Policy, which can be viewed here. By using the Services, you acknowledge that you have read these privacy policies.
Because the Services are hosted by Shopify, Shopify collects and processes personal information about your access to and use of the Services in order to provide and improve the Services for you. Information you submit to the Services will be transmitted to and shared with Shopify as well as third parties that may be located in other countries than where you reside, in order to provide services to you. Review our privacy policy [LINK] for more details on how we, Shopify, and our partners use your personal information.
SECTION 11 - FEEDBACK
If you submit, upload, post, email, or otherwise transmit any ideas, suggestions, feedback, reviews, proposals, plans, or other content (collectively, “Feedback”), you grant us a perpetual, worldwide, sublicensable, royalty-free license to use, reproduce, modify, publish, distribute and display such Feedback in any medium for any purpose, including for commercial use. We may, for example, use our rights under this license to operate, provide, evaluate, enhance, improve and promote the Services and to perform our obligations and exercise our rights under the Terms of Service.
You also represent and warrant that: (i) you own or have all necessary rights to all Feedback; (ii) you have disclosed any compensation or incentives received in connection with your submission of Feedback; and (iii) your Feedback will comply with these Terms. We are and shall be under no obligation (1) to maintain your Feedback in confidence; (2) to pay compensation for your Feedback; or (3) to respond to your Feedback.
We may, but have no obligation to, monitor, edit or remove Feedback that we determine in our sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.
You agree that your Feedback will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your Feedback will not contain libelous or otherwise unlawful, abusive or obscene Feedback, or contain any computer virus or other malware that could in any way affect the operation of the Services or any related website. You may not use a false email address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any Feedback. You are solely responsible for any Feedback you make and its accuracy. We take no responsibility and assume no liability for any Feedback posted by you or any third-party.
SECTION 12 - ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on or in the Services that contain typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information is inaccurate at any time without prior notice (including after you have submitted your order).
SECTION 13 - PROHIBITED USES
You may access and use the Services for lawful purposes only. You may not access or use the Services, directly or indirectly: (a) for any unlawful or malicious purpose; (b) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (c) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (d) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or harm any of our employees or any other person; (e) to transmit false or misleading information; (f) to send, knowingly receive, upload, download, use, or re-use any material that does not comply with the these Terms; (g) to transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation; (h) to impersonate or attempt to impersonate any other person or entity; or (i) to engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services, or which, as determined by us, may harm King of Sparklers, Shopify or users of the Services, or expose them to liability.
In addition, you agree not to: (a) upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services; (b) reproduce, duplicate, copy, sell, resell or exploit any portion of the Services; (c) collect or track the personal information of others; (d) spam, phish, pharm, pretext, spider, crawl, or scrape; or (e) interfere with or circumvent the security features of the Services or any related website, other websites, or the Internet. We reserve the right to suspend, disable, or terminate your account at any time, without notice, if we determine that you have violated any part of these Terms.
SECTION 14 - TERMINATION
We may terminate this agreement or your access to the Services (or any part thereof) in our sole discretion at any time without notice, and you will remain liable for all amounts due up to and including the date of termination.
The following sections will continue to apply following any termination: Intellectual Property, Feedback, Termination, Disclaimer of Warranties, Limitation of Liability, Indemnification, Severability, Waiver; Entire Agreement, Assignment, Governing Law, Privacy Policy, and any other provisions that by their nature should survive termination.
SECTION 15 - DISCLAIMER OF WARRANTIES
The information presented on or through the Services is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services, or by anyone who may be informed of any of its contents.
EXCEPT AS EXPRESSLY STATED BY King of Sparklers, THE SERVICES AND ALL PRODUCTS OFFERED THROUGH THE SERVICES ARE PROVIDED 'AS IS' AND 'AS AVAILABLE' FOR YOUR USE, WITHOUT ANY REPRESENTATION, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
The foregoing disclaimers of implied warranties apply to the maximum extent permitted by applicable law. In jurisdictions that prohibit or restrict the disclaimer of implied warranties to consumers (including, where and as applicable, the jurisdictions identified in Section 25.9(c)), such disclaimers shall not apply to the extent so prohibited, and the implied warranties otherwise applicable by law are preserved solely to the minimum extent legally required. Any claim under a non-waivable implied warranty remains subject to the limitation of liability in Section 25.6 to the fullest extent permitted by law.
SECTION 16 - LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, THE LIMITATION ON DAMAGES AND THE CAP ON MAXIMUM AGGREGATE LIABILITY IN SECTION 25.6 SHALL APPLY TO ALL CLAIMS ARISING FROM OR RELATED TO THE SERVICES OR ANY SPARKLER PRODUCT, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, OR STATUTE. IN NO CASE SHALL KING OF SPARKLERS, ITS AFFILIATES, PARTNERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SERVICE PROVIDERS, OR LICENSORS, OR THOSE OF SHOPIFY AND ITS AFFILIATES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, AND REPLACEMENT COSTS), EVEN IF ADVISED OF THEIR POSSIBILITY. THE SAVINGS AND EXCLUSION PROVISIONS OF SECTION 25.9 APPLY TO THIS SECTION.
SECTION 17 - INDEMNIFICATION
You agree to indemnify, defend and hold harmless King of Sparklers, Shopify, and our affiliates, partners, officers, directors, employees, agents, contractors, licensors, and service providers from any losses, damages, liabilities or claims, including reasonable attorneys’ fees, payable to any third party due to or arising out of (1) your breach of these Terms of Service or the documents they incorporate by reference, (2) your violation of any law or the rights of a third party, or (3) your access to and use of the Services.
We will notify you of any indemnifiable claim, provided that a failure to promptly notify will not relieve you of your obligations unless you are materially prejudiced. We may control the defense and settlement of such claim at your expense, including choice of counsel, but will not settle any claim requiring non-monetary obligations from you without your consent (not to be unreasonably withheld). You will cooperate in the defense of indemnified claims, including by providing relevant documents.
This general indemnification is supplemented by, and does not limit, the product-specific indemnification in Section 25.8. In the event of any conflict between this Section 17 and Section 25.8 as applied to Sparkler Products, Section 25.8 controls.
SECTION 18 - SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions. With respect to Sparkler Products, the section-specific severability and reformation provisions of Section 25.14 shall apply and, to the extent of any conflict, shall control over this Section 18.
SECTION 19 - WAIVER; ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to the Service constitutes the entire agreement and understanding between you and us and governs your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.
SECTION 20 - ASSIGNMENT
You may not delegate, transfer or assign this Agreement or any of your rights or obligations under these Terms without our prior written consent, and any such attempt will be null and void. We may transfer, assign, or delegate these Terms and our rights and obligations without consent or notice to you.
SECTION 21 - GOVERNING LAW
These Terms of Service, and any claim, dispute, or controversy arising out of or relating to them or to any Sparkler Product, shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflict-of-laws rules. The U.N. Convention on Contracts for the International Sale of Goods does not apply. The exclusive venue for any such claim, dispute, or controversy shall be the state or federal courts located in Miami-Dade County, Florida, and you and King of Sparklers consent to the personal jurisdiction of, and venue in, such courts and waive any objection based on forum non conveniens. Nothing in this Section 21 is intended to deprive a consumer of any non-waivable right to bring suit under the law of his or her state of residence where such right cannot lawfully be waived.
SECTION 22 - HEADINGS
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
SECTION 23 - CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time on this page.
We reserve the right, in our sole discretion, to update, change, or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. We will notify you of any material changes to these Terms in accordance with applicable law, and such changes will be effective on the date specified in the notice. Your continued use of or access to the Services following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
SECTION 24 - CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at info@kingofsparklers.com.
Our contact information is posted below:
King of Sparklers, LLC
info@kingofsparklers.com
1025 SE 5th Street, Hialeah, FL 33010
800-913-5122
SECTION 25 — ASSUMPTION OF RISK, RELEASE, LIMITATION OF LIABILITY, AND INDEMNIFICATION FOR SPARKLER PRODUCTS
25.1 Application and Priority. This Section 25 applies to every purchase, possession, or use of sparklers, pyrotechnic novelties, and related combustible products (collectively, "Sparkler Products") sold by King of Sparklers, LLC ("King of Sparklers," "we," "us," or "our"). In the event of any conflict between this Section 25 and any other provision of these Terms of Service, this Section 25 controls with respect to Sparkler Products.
25.2 Bargained-For Consideration; Material Condition of Sale. You acknowledge and agree that (a) the allocation of risk in this Section 25 is a material part of the bargain between you and King of Sparklers; (b) the prices at which Sparkler Products are offered reflect that allocation of risk, and King of Sparklers would not sell Sparkler Products at such prices absent the protections in this Section 25; and (c) you have had a full and fair opportunity to review this Section 25 and, if you wished, to consult counsel of your choosing before accepting these Terms.
25.3 CONSPICUOUS WARNING — INHERENTLY DANGEROUS PRODUCT. SPARKLER PRODUCTS ARE PYROTECHNIC ARTICLES THAT PRODUCE OPEN FLAME, EXTREME HEAT (REACHING 1,800 °F OR HIGHER AT THE BURNING TIP), SPARKS, AND HOT METALLIC DEBRIS. IMPROPER USE CAN CAUSE SERIOUS PERSONAL INJURY, PERMANENT DISFIGUREMENT, BLINDNESS, OR DEATH, AND CAN CAUSE PROPERTY DAMAGE OR FIRE. READ AND FOLLOW ALL PACKAGING INSTRUCTIONS, MANUFACTURER WARNINGS, U.S. CONSUMER PRODUCT SAFETY COMMISSION GUIDANCE, AND ALL APPLICABLE FEDERAL, STATE, AND LOCAL FIRE, FIREWORKS, AND SAFETY LAWS BEFORE USE.
25.4 ASSUMPTION OF RISK. BY PURCHASING, RECEIVING, OR USING SPARKLER PRODUCTS, YOU KNOWINGLY, VOLUNTARILY, AND EXPRESSLY ASSUME ALL RISKS ASSOCIATED WITH THE PURCHASE, POSSESSION, STORAGE, HANDLING, LIGHTING, AND USE OF SPARKLER PRODUCTS, INCLUDING, WITHOUT LIMITATION:
(a) BURNS TO SKIN, EYES, HAIR, OR CLOTHING; (b) FIRE, INCLUDING IGNITION OF CLOTHING, HAIR, LINENS, DECORATIONS, FLORAL ARRANGEMENTS, PACKAGING, OR OTHER FLAMMABLE MATERIALS; (c) EYE INJURY FROM SPARKS, DEBRIS, OR COMBUSTION BYPRODUCTS; (d) INHALATION OF SMOKE, PARTICULATES, OR COMBUSTION BYPRODUCTS; (e) INJURY TO BYSTANDERS, GUESTS, INVITEES, EMPLOYEES, CUSTOMERS, OR MINORS; (f) PROPERTY DAMAGE, INCLUDING DAMAGE TO REAL PROPERTY, FIXTURES, FURNISHINGS, VEHICLES, AND DECOR; (g) ADVERSE OR EXPLOSIVE REACTIONS WHEN SPARKLER PRODUCTS ARE USED IN PROXIMITY TO FLAMMABLE LIQUIDS, AEROSOLS, ALCOHOL, OXYGEN, OR OTHER COMBUSTIBLE OR REACTIVE SUBSTANCES; (h) INJURY ARISING FROM PRODUCT MALFUNCTION, MANUFACTURING VARIANCE, OR UNEXPECTED BURN CHARACTERISTICS; AND (i) ANY OTHER RISK ORDINARILY ASSOCIATED WITH CONSUMER-GRADE PYROTECHNIC ARTICLES.
THE ABOVE LIST IS ILLUSTRATIVE AND NOT EXHAUSTIVE. YOU ACCEPT ALL SUCH RISKS, WHETHER OR NOT SPECIFICALLY ENUMERATED.
25.5 Buyer Representations, Warranties, and Safety Covenants. You represent, warrant, and covenant that:
(a) You are at least 18 years of age, or the minimum age required to purchase, possess, or use consumer fireworks or pyrotechnic novelties in your jurisdiction, whichever is greater; (b) You have read and will read, understand, and follow all product packaging warnings and instructions, all safety materials provided by King of Sparklers, and the CPSC's published fireworks-safety guidance; (c) You are solely responsible for determining whether Sparkler Products are legal to possess and use at the location(s) where you intend to use them, and you will not use Sparkler Products in any jurisdiction where their possession or use is prohibited or where you do not hold any required permit; (d) You will comply with all applicable federal, state, and local laws, regulations, ordinances, and fire-code requirements in the storage, handling, and use of Sparkler Products; (e) You will not allow Sparkler Products to be lit or handled by any person who is intoxicated, impaired, or unable to exercise due care, and adult supervision will be maintained during any use; (f) You will keep water, a fire extinguisher, sand, or another suitable means of fire suppression immediately available during use; and (g) You will not insert any Sparkler Product into any part of the human body, will not hold any Sparkler Product in the mouth, and will not allow any other person to do so.
25.6 LIMITATION OF LIABILITY (SPARKLER PRODUCTS). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY EXCLUDED IN SECTION 25.9, KING OF SPARKLERS'S MAXIMUM AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATING TO ANY SPARKLER PRODUCT OR THE SERVICES, FOR ALL CAUSES OF ACTION AND UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, OR STATUTE), SHALL NOT EXCEED THE GREATER OF (A) THE PURCHASE PRICE YOU ACTUALLY PAID FOR THE SPECIFIC SPARKLER PRODUCT GIVING RISE TO THE CLAIM OR (B) ONE HUNDRED U.S. DOLLARS (US $100). IN NO EVENT SHALL KING OF SPARKLERS BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, LOST GOODWILL, OR BUSINESS INTERRUPTION, EVEN IF KING OF SPARKLERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES; IN SUCH JURISDICTIONS OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
25.7 RELEASE AND WAIVER (ORDINARY NEGLIGENCE). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY RELEASE, WAIVE, AND DISCHARGE KING OF SPARKLERS AND ITS AFFILIATES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, AND LICENSORS (COLLECTIVELY, THE "RELEASED PARTIES") FROM ANY AND ALL CLAIMS, DEMANDS, SUITS, CAUSES OF ACTION, LOSSES, DAMAGES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING OUT OF OR RELATING TO (i) YOUR PURCHASE, POSSESSION, STORAGE, HANDLING, OR USE OF SPARKLER PRODUCTS; (ii) THE USE OF SPARKLER PRODUCTS BY ANY PERSON TO WHOM YOU SELL, TRANSFER, OR FURNISH THEM; OR (iii) INJURY, DAMAGE, OR LOSS TO YOU, YOUR EMPLOYEES, YOUR GUESTS, YOUR CUSTOMERS, YOUR INVITEES, OR ANY BYSTANDER—INCLUDING ANY SUCH CLAIM ARISING FROM THE ORDINARY NEGLIGENCE OF ONE OR MORE OF THE RELEASED PARTIES. THIS RELEASE IS INTENDED TO BE AS BROAD AS IS PERMITTED BY THE LAW OF THE JURISDICTION IN WHICH IT IS ENFORCED AND NO BROADER.
25.8 INDEMNIFICATION. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE RELEASED PARTIES FROM AND AGAINST ANY AND ALL THIRD-PARTY CLAIMS, DEMANDS, SUITS, CAUSES OF ACTION, LOSSES, DAMAGES, LIABILITIES, JUDGMENTS, SETTLEMENTS, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPERT FEES) (EACH, A "CLAIM") ARISING OUT OF OR RELATING TO:
(a) your use, misuse, storage, handling, transportation, transfer, or resale of any Sparkler Product; (b) the use of Sparkler Products by any of your employees, customers, guests, invitees, subcontractors, or any other person to whom you sell, distribute, or make available Sparkler Products; (c) your breach of these Terms, including any representation, warranty, or covenant in this Section 25; (d) your violation of any applicable law, regulation, ordinance, permit, or rule; and (e) any injury to person (including death) or damage to property arising from any of the foregoing.
IT IS THE EXPRESS AND UNEQUIVOCAL INTENT OF THE PARTIES THAT THIS INDEMNIFICATION OBLIGATION SHALL APPLY TO CLAIMS ARISING IN WHOLE OR IN PART FROM THE ORDINARY NEGLIGENCE OF ONE OR MORE OF THE RELEASED PARTIES, AND THIS INTENT IS STATED HEREIN IN CLEAR AND UNEQUIVOCAL TERMS.
25.9 Exclusions and Savings Clause. Notwithstanding anything to the contrary in Sections 25.6, 25.7, and 25.8:
(a) Nothing in this Section 25 shall be construed to release, limit, or require indemnification of the Released Parties for any Claim arising from (i) the gross negligence, (ii) the willful, wanton, reckless, or intentional misconduct, (iii) the fraud, or (iv) the knowing violation of law of a Released Party;
(b) Nothing in this Section 25 shall be construed to waive, limit, or require indemnification of any right, remedy, or protection that cannot lawfully be waived or limited by contract under applicable law, including (as applicable) non-waivable consumer-protection rights, non-waivable implied warranties, and statutory remedies under the law of the jurisdiction applicable to your claim;
(c) In any jurisdiction that prohibits or restricts the disclaimer of implied warranties to consumers (including, where and as applicable, Alabama, Connecticut, the District of Columbia, Kansas, Maryland, Massachusetts, Mississippi, Vermont, and West Virginia), the implied-warranty disclaimers in Section 15 and elsewhere shall not apply to the extent so prohibited, and your rights under any non-waivable implied warranty are preserved to the minimum extent required by law;
(d) The indemnification obligation in Section 25.8 shall not extend to Claims arising solely from the gross negligence, willful misconduct, or fraud of the Released Parties; and
(e) In any jurisdiction that requires any term of this Section 25 to be narrower in order to be enforceable, that term shall be deemed reformed and enforced to the maximum extent permitted, consistent with Section 25.14.
25.10 Defense Mechanics. You shall give King of Sparklers prompt written notice of any Claim for which you are obligated to indemnify under Section 25.8, provided that failure to give prompt notice shall not relieve you of your obligations except to the extent you are materially prejudiced. King of Sparklers may, at its option and at your expense, (i) assume sole control of the defense and settlement of any such Claim with counsel of its choosing or (ii) require you to defend such Claim with counsel reasonably acceptable to King of Sparklers. No settlement that imposes any non-monetary obligation on, or any admission by, King of Sparklers shall be entered without King of Sparklers's prior written consent (not to be unreasonably withheld). You shall reasonably cooperate in the defense, including by producing documents and making witnesses available.
25.11 Commercial (B2B) Buyers — Additional Terms. If you are purchasing Sparkler Products for use in a trade, business, event-production, hospitality, culinary, wedding, entertainment, or other commercial setting, or for resale in any form (a "Commercial Buyer"), the following additional provisions apply. You represent that you are a sophisticated commercial party, that you have bargained freely for these terms, and that the protections below are a material part of the commercial bargain.
(a) Licenses and Permits. You represent and warrant that you hold, and will maintain in force throughout your possession, resale, or use of Sparkler Products, all licenses, permits, registrations, and authorizations required by federal, state, and local law.
(b) Pass-Through Obligations. You shall require each of your customers, guests, employees, subcontractors, and other downstream end users to (i) receive and acknowledge substantially the same warnings and safety instructions set forth in Sections 25.3, 25.4, and 25.5 and (ii) where practicable, execute a written waiver of liability and assumption of risk in favor of you and King of Sparklers, containing indemnification obligations substantially equivalent to those in Section 25.8. You shall retain records of such acknowledgments or waivers for at least three (3) years and produce them upon King of Sparklers's reasonable request in connection with any Claim.
(c) Insurance. You shall procure and maintain, at your sole expense, commercial general liability insurance on an occurrence basis with minimum limits of not less than $1,000,000 per occurrence and $2,000,000 general aggregate, including products/completed-operations coverage. Upon King of Sparklers's written request, you shall (i) name King of Sparklers as an additional insured on a primary and non-contributory basis and (ii) deliver a certificate of insurance evidencing such coverage. You waive, and shall cause your insurer to waive, rights of subrogation against King of Sparklers and the other Released Parties.
(d) Expanded Indemnification. The indemnification obligation in Section 25.8 applies to Commercial Buyers without the consumer-protection savings of Section 25.9(b), except to the extent a non-waivable statutory right applies notwithstanding the Commercial Buyer's status.
(e) UCC Merchant Acknowledgment. Commercial Buyers acknowledge that they are "merchants" as defined in UCC § 2-104, that the disclaimers, limitations, and allocations of risk in these Terms are conspicuous and bargained for, and that the limitation of remedies does not fail of its essential purpose under UCC § 2-719 in light of the consideration exchanged.
25.12 Assent. You manifest your knowing and voluntary acceptance of these Terms, including this Section 25, by clicking the "Pay Now," "Complete Order," "Check Out," or equivalent button to submit your order after being presented with conspicuous notice of these Terms and a hyperlink to their full text, including a direct link or reference to this Section 25. You acknowledge that (a) you had a reasonable opportunity to review these Terms before completing your purchase, (b) the notice presented at checkout was clear and conspicuous, (c) your decision to complete the purchase constitutes an affirmative manifestation of assent, and (d) no additional act or signature is required to form a binding agreement. If you are a Commercial Buyer, your assent is further evidenced by any separate Commercial Buyer Agreement, wholesale application, or account-activation acknowledgment you execute with King of Sparklers, which is incorporated herein by reference.
25.13 Shortened Limitations Period. Except where prohibited by applicable law, any claim or cause of action arising out of or relating to any Sparkler Product or the Services must be filed within one (1) year after the claim or cause of action accrued, or it shall be permanently barred. In jurisdictions that do not permit contractual shortening of statutes of limitation, or that require a longer minimum period, the minimum permitted period shall apply.
25.14 Severability and Reformation (Section-Specific). If any provision of this Section 25 is held invalid, unenforceable, or void by a court or arbitrator of competent jurisdiction:
(a) the provision shall be reformed to the minimum extent necessary to render it enforceable while preserving the parties' original intent to the maximum extent permitted by law;
(b) if reformation is not possible, the offending provision shall be severed only as to the specific party, transaction, or jurisdiction in which it is unenforceable, and all remaining provisions—and the application of this Section 25 to all other parties, transactions, and jurisdictions—shall continue in full force and effect; and
(c) the unenforceability of any provision of this Section 25 in any jurisdiction shall not result in the unenforceability of Section 25 as a whole, and the remaining provisions of Section 25 (in particular Sections 25.4, 25.6, 25.8, 25.9, and 25.11) shall be enforced as fully as the law allows.
25.15 Survival. The obligations in this Section 25 survive completion, cancellation, or termination of any order and termination of these Terms.