Kersten’s Antiques & Curios, LLC (“Kersten’s”)
TERMS AND CONDITIONS OF SERVICE
THESE TERMS AND CONDITIONS OF SERVICE MUST BE READ CAREFULLY BY ALL USERS OF THE KERSTEN’S SERVICE (AS DEFINED BELOW) AND WEBSITE(S). BY ACCESSING OR USING KERSTEN’S WEBSITE(S), APPLICATIONS OR OTHER PRODUCTS OR SERVICES (COLLECTIVELY, THE “Service”), YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH OR REFERENCED HEREIN (THIS “Agreement”). IF YOU DO NOT AGREE TO ALL OF THE TERMS SET FORTH IN THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE.
BY USING THE SERVICE, YOU AFFIRM THAT YOU ARE EITHER (1) OF LEGAL AGE TO ENTER INTO THIS AGREEMENT (WHICH IS 18 IN MOST STATES), OR, (2) AT LEAST 14 YEARS OLD AND THAT YOU HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT TO ENTER INTO THIS AGREEMENT, AND THAT YOUR PARENT OR GUARDIAN HAS AGREED TO BE LIABLE FOR YOUR ACTS AND OMISSIONS.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
This Agreement applies to your access to and use of the Service provided by Kersten’s. Additional terms (including, but not limited to, the terms of social media services, third-party payment processors, and third-party fulfillment providers) may apply to particular functionalities and features related to the Service.
- Listings. The Service includes a forum where users may post and browse listings for goods (each a “Listing”). Such Listings are provided by users, and not by Kersten’s. KERSTEN’S DO NOT SELL, RENT OR OTHERWISE MAKE AVAILABLE ANY GOODS OR PRODUCTS. KERSTEN’S IS NOT RESPONSIBLE OR LIABLE FOR ANY SUCH LISTINGS AND SUCH LISTINGS DO NOT CONSTITUTE AN OFFER FROM KERSTEN’S. PLEASE USE CAUTION AND COMMON SENSE WHEN BUYING, SELLING, LEASING OR OTHERWISE PARTICIPATING IN ANY TRANSACTION REGARDING A LISTING, OR MAKING OR RECEIVING PAYMENT FOR ANY LISTING. The availability or promotion of a Listing through the Service does not imply Kersten’s endorsement of the Listing or the provider. Kersten’s makes no representations whatsoever about any Listings, or any users. Information about and the availability of any Listing are subject to change at any time without notice. You must ascertain and obey all applicable laws regarding the marketing, promotion, sale, purchase, delivery, receipt, possession and use of the subject of any Listing. Kersten’s reserves the right to remove any Listing for any reason. You represent and warrant that you have the necessary authority and permissions to post any Listing, to enter into any transaction or to make any transfer relating to a Listing, including, if you are not of legal age to do so, by obtaining proper parental or guardian consent. The legal age is 18 in most states.
- Submissions. You may submit information that could be used to personally identify you through Listings, the creation of profile pages, submissions in forums, connection via a social network, message boards, chat, comments, or various other interactive channels of the Service (each, a “Submission”). You are responsible for any Submission you make. Kersten’s has no control over and are not responsible for any use or misuse (including any distribution) by any third party of your Submissions.
- License. You retain ownership of your Submissions but for each Submission you make you hereby grant to Kersten’s a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), create derivative works of, adapt, modify and otherwise use, analyze and exploit each Submission, in any format or media now known or hereafter developed, and for any purpose (including promotional purposes, such as testimonials). You represent and warrant that you have all right and title necessary to grant the licenses granted in this section, and that your Submissions, and your provision thereof through and in connection with the Service, are complete and accurate, and are not fraudulent, tortious or otherwise in violation of any applicable law or any right of any third party. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding each Submission that you may have under any applicable law under any legal theory.
- Account Registration and Security Responsibilities. In order to access certain parts of the Service, you may be required to create a Kersten’s account (an “Account”) or a seller payment account (“Seller Payment Account”) with Stripe, Inc. or such other payment processing service provider as used by Kersten’s as described on the Service at the time of the transaction (the “Payment Processor”). In connection with creating an Account or a Seller Payment Account, you must provide certain information (“Registration Data”) and answer all questions or fields marked “required.” You agree to: (a) provide true, accurate, current and complete Registration Data; (b) maintain and update such Registration Data to keep it true, accurate, current and complete; (c) maintain the security of your Account and the Seller Payment Account, including by maintaining the security and confidentiality of your login credentials; and (d) consent to allow Kersten’s to contact you for the purpose of confirming some or all of your Registration Data, to conduct research and to resolve disputes, as Kersten’s may elect to do from time to time.
- Purchases from Other Users; Payment; Refunds.
(a) Cash and Other Payments Determined by Users. A buyer may, by agreement with the seller, elect to make payment by cash, check or other payment method accepted by the seller. Such payments are made directly between the buyer and the seller when they complete a purchase and sale transaction between each other using the Service, pursuant to terms they determine. KERSTEN’S IS NOT A PARTY TO SUCH TRANSACTIONS, AND DOES NOT FACILITATE SUCH TRANSACTIONS, REFUNDS OR RETURNS IN ANY MANNER.
(b) Kersten’s Payment Solution. A buyer and seller may instead pay with and accept credit cards and other electronic payment methods (each an “Electronic Payment Method”) through the Service. Kersten’s has integrated with Payment Processor (currently Stripe, Inc.), a payment processing service, to allow sellers to accept certain Electronic Payment Methods from buyers using Payment Processor’s payment processing services (“Kersten’s Payment Solution”). Buyers who wish to use the Kersten’s Payment Solution must register an Electronic Payment Method with Kersten’s, and sellers must enroll for the service through Payment Processor. Enrollment in and usage of the Kersten’s Payment Solution is voluntary, so buyers should note that some sellers may not accept Electronic Payment Methods, or may only accept Electronic Payment Methods for certain transactions. Kersten’s, in its sole discretion, may from time to time impose limits on your ability to make and/or receive payments through the Kersten’s Payment Solution. Additionally, Payment Processor may impose its own limits and limitations on a seller’s use of the Kersten’s Payment Solution. For instance, a seller’s enrollment in the Kersten’s Payment Solution is subject to Payment Processor’s confirmation that the seller meets Payment Processor’s enrollment criteria. Sellers should refer to Section 7(d) below for information about the impact of failing to meet Payment Processor’s enrollment criteria.
(i) Buyers. As with any purchases made using cash, all purchases made using the Kersten’s Payment Solution are made directly between the buyer and the seller when they complete their purchase and sale transaction, pursuant to the terms they determine. When you initiate a payment through the Kersten’s Payment Solution, the seller processes your Electronic Payment Method using Payment Processor’s payment processing service. Kersten’s is not a party to purchase and sale transactions completed using the Kersten’s Payment Solution, and disclaims any and all responsibility to facilitate such transactions, except to provide an interface through which you can provide your Electronic Payment Method to Payment Processor to process on behalf of the seller. Kersten’s further disclaims any and all responsibility to facilitate or provide refunds or returns in any manner.
(ii) Sellers. By using the Kersten’s Payment Solution to accept Electronic Payment Methods, you are entering into an agreement with Payment Processor subject to the terms of the Stripe Connected Account Agreement, which includes the Stripe Terms of Service as long as Stripe, Inc. is the Payment Processor or the terms of the other applicable Payment Processor’s account agreement and terms of service (collectively, the “Payment Processor Services Agreement”) you must obtain from Payment Processor when creating your Seller Payment Account. Notwithstanding anything to the contrary in the Payment Processor Services Agreement, you will not have the right to have Payment Processor, and will not request that Payment Processor, transfer any buyer data Payment Processor collects via the Kersten’s Payment Solution to an alternative payment processor. Except for the foregoing restriction that supersedes any rights you may have in the Payment Processor Services Agreement, the Payment Processor Services Agreement is separate from this Agreement. Kersten’s is not a party to the Payment Processor Services Agreement and will not be liable or responsible for the payment services provided by Payment Processor. If Payment Processor discontinues providing services in connection with the Kersten’s Payment Solution, you authorize Payment Processor to share your payment method information with an alternative third-party payment processor that is or will be integrated into the Kersten’s Payment Solution.
(iii) Seller Fees. You agree to pay the service fees (“Service Fees”) for the sales transactions you make using the Kersten’s Payment Solution. The Service Fees include Electronic Payment Method processing fees to Payment Processor and service fees to Kersten’s. Kersten’s reserves the right to change the Service Fees from time to time.
(iv) Receiving Sales Proceeds. Upon completion of a sale in which the buyer uses the Kersten’s Payment Solution, if you have not previously set up a Seller Payment Account, then you must set up a Seller Payment Account in accordance with the requirements specified by Payment Processor to receive the payment via the Kersten’s Payment Solution. Payment Processor must accept your application to use the Kersten’s payment solution before you can receive sales proceeds via the Kersten’s Payment Solution. If Payment Processor rejects your application or you fail to set up a Seller Payment Account within 90 days after completion of a sale processed by Payment Processor through the Kersten’s Payment Solution, then Payment Processor may disable or limit your ability to receive sales proceeds via the Kersten’s Payment Solution.
(v) Taxes. It is your responsibility to determine what, if any, taxes apply to each transaction you complete via the Service, including, for example, sales, use, value added, and similar taxes. It is also your responsibility to withhold, collect, report and remit the correct taxes to the appropriate tax authorities. Kersten’s is not responsible for withholding, collecting, reporting, or remitting any sales, use, value added, or similar tax arising from any transaction you complete via the Service.
(vi) Transactions Final; NO REFUNDS FROM OR THROUGH KERSTEN’S. Regardless of the payment method chosen, ALL PURCHASES ARE FINAL, AND THERE ARE NO REFUNDS, UNLESS YOU AND THE SELLER OTHERWISE AGREE AND MAKE ARRANGEMENTS FOR A REFUND. KERSTEN’S WILL NOT BE RESPONSIBLE FOR FACILITATING OR PROVIDING REFUNDS.
(vii) Acceptable Use Violations. Your right and/or ability to receive sales proceeds via the Kersten’s Payment Solution may be revoked, disabled or limited if the purchase or sale violates Section 10 (Acceptable Use) of this Agreement.
(c) Shipping. The seller in any transaction for the sale of goods to a buyer consummated using the Service shall be solely responsible for shipping of the item on terms agreed to between the seller and the buyer. Kersten’s is not a party to transactions conducted between buyers and sellers, or to the shipping of items from sellers to buyers, and, Kersten’s will not be liable for, and you release Kersten’s from any liability to you for, any losses, damages, or delays related to shipping of good or products sold to buyer or purchased from sellers through the Service. As a seller, you assume full responsibility for compliance with all applicable laws and regulations, including those regarding mailing and shipping. Kersten’s Service does and may provide links and information regarding utilization of third party shipping services (e.g. Ship Station), but you (i.e. as seller or buyer) are not obligated to use any such third party shipping service and you agree that Kersten’s will not be liable and the preceding portions of this paragraph will apply to any shipping arranged through any such third party shipping service.
8. Terms of Sale for Kersten’s Paid Services. From time to time, Kersten’s may make certain services available for a fee in connection with the Service (“Paid Services”) including, but not limited to, for Listings posted using the Service, payment processing and other services. The following terms of sale apply solely to your purchase of Paid Services from Kersten’s.
(a) Fees. Unless otherwise agreed upon by Kersten’s in writing, the fees payable in connection with any Paid Services (“Fees”) will be specified via the Service. All Fees are denominated in U.S. dollars and are exclusive of any applicable taxes.
(b) Payment Method. You may only pay Fees using valid payment methods acceptable to Kersten’s as specified by the Service. You represent and warrant that you are authorized to use the payment method you designate when using the Service. You authorize Kersten’s to charge your designated payment method for the total amount of your purchase, including any applicable taxes and other charges. You authorize Kersten’s to use a third-party service to update your designated payment information if it is cancelled or expires. If the payment method cannot be verified, is invalid or is otherwise not acceptable to Kersten’s, your order may be suspended or cancelled.
(c) Price Changes. Kersten’s reserves the right to modify the Fees for any Paid Services from time to time in its sole discretion.
(d) Taxes. You are responsible for any sales, duty or other governmental taxes or fees due with respect to your purchase of Paid Services. Kersten’s will collect applicable sales tax if Kersten’s determines that Kersten’s has a duty to collect sales tax, and will provide notice of such taxes at the time you place your order.
(e) No Refunds. Except as provided in Section 8(f), all sales of Paid Services are final and there are no refunds.
(f) Errors. In the event of an error in connection with the pricing or charging of Paid Services, Kersten’s reserves the right to correct such error and revise your order accordingly (including charging the correct price) or to cancel the purchase and refund any amount charged. Your sole remedy in the event of a billing error is to obtain a refund for the excess amount charged. To be eligible for such refund, you must provide notice of any such error within 120 days of the date of the billing statement in which such error first appeared.
9. Discontinuance of the Service. Kersten’s may, in its sole discretion and without liability to you, modify, discontinue, terminate, suspend or shut-down (temporarily or permanently) all or any portion of the Service at any time, without prior notice. Upon any such action by Kersten’s, you must immediately stop using the Service. You may also cancel your Account at any time, as described below.
10. Acceptable Use. When accessing or using the Service, you agree that you will not violate any law, contract, intellectual property or other third-party right or commit a tort. Without limiting the generality of the foregoing, you agree that you will not do, and will not permit any third party to do, any of the following:
- Engage in any unauthorized use of the Service (including, without limitation, political campaigning, advertising, or marketing);
- Transmit or otherwise make available any content that: (1) you do not have the right to provide or transmit using the Service, (2) may expose Kersten’s, the Affiliated Parties or their licensors, or users to any harm or liability, or (3) is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, unlawful, untrue, or otherwise objectionable;
- Upload to, transmit, distribute, store, create, or otherwise sell or offer for sale through the a Listing or otherwise using the Service any of the following: (1) alcohol, drugs or tobacco; (2) adult and mature content including, without limitation, explicit sexual content, pornography or adult toys; (3) animals; (4) wildlife products; (5) counterfeit and replica items; (6) dangerous items including, without limitation, firearms, knives used as weapons or other weapons, body armor, regulated chemicals, poisons or substances, hazardous materials, fireworks, explosives or items that pose significant health or safety risk to others; (7) recalled items; (8) food items; (9) gift cards; (10) illegal items or encouraging illegal activity; (11) intangible items; (12) medical or healthcare items; or (13) offensive materials.
- Falsely state, impersonate, or otherwise misrepresent your identity;
- Provide false information during Account creation or when using the Kersten’s Payment Solution, or otherwise provide false, inaccurate or misleading information;
- Create more than one Account or create an Account on behalf of anyone other than yourself without permission;
- Use or attempt to use another user’s Account without authorization;
- Transmit or otherwise make available any content that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- Originate, send, deliver, relay or otherwise transmit unsolicited commercial email or other messages through the Service;
- Copy any portion of the Service or any underlying content or source code;
- Reverse engineer, disassemble or decompile any portion of the Service or otherwise attempt to discover or re-create the source code to any software;
- Distribute the software or source code behind the Service to any third party;
- Make any modification, adaptation, improvement, enhancement, translation or derivative work of or to any portion of the Service;
- Remove, alter, or obscure any copyright or other proprietary notices of Kersten’s, the Affiliated Parties or their licensors in any portion of the Service;
- Obscure or disable any advertisements that appear on or through the Service;
- Use any type of automated means, including without limitation any harvesting bot, robot, spider, script, crawler, scraper or other automated means or interface not provided by Kersten’s, to utilize the Service or to collect or extract data;
- Access without authorization any networks, systems, or databases used in providing the Service or any accounts associated with Service, or to access or use any information therein for any purpose;
- Attempt to probe, test, hack, or otherwise circumvent any security measures;
- Violate any requirements, policies, procedures or regulations of any network connected to the Service;
- Use the Service in any manner that could damage, disable, overburden, or otherwise impair the Service (or the networks connected to the Service);
- Interfere with or disrupt the use and enjoyment by others of the Service, including without limitation attempting, in any manner, to obtain the password, account, or other security information of any other user;
- Attempt to pay for an item using the Kersten’s Payment Solution with an Electronic Payment Method that you either do not own or are not validly authorized to use;
- Use the Service in any manner to stalk, harass, invade the privacy of, or otherwise cause harm to, any person;
- Use the Service in any manner that exposes Kersten’s to any harm or liability of any nature;
- Use the Service to infringe or violate the intellectual property rights or any other rights of anyone else (including Kersten’s);
- Develop any third-party applications that interact with the Service without Kersten’s prior written consent;
- Use the Service to engage in any illegal or unauthorized purpose or to engage in, encourage, or promote activities that are unlawful, misleading, malicious or discriminatory, including, but not limited to violations of this Agreement, illegal gambling, fraud, money-laundering, or terrorist activities; or
- Encourage or induce any third party to engage in any of the activities prohibited under this section.
If you violate any of the foregoing, Kersten’s reserves the right to suspend or terminate your right to access and use the Service immediately without notice, and you will have infringed Kersten’s intellectual property and other rights, which may subject you to prosecution and damages. Kersten’s also reserves the right to take any remedies it deems appropriate under the circumstances if you have purchased or sold items that are in violation of this Section. Kersten’s reserves the right at all times to monitor, review, retain and disclose any information regarding your use of the Service as necessary to satisfy any applicable law, regulation, legal process or governmental request. You also acknowledge and agree that Kersten’s is not responsible or liable for the conduct of, or your interactions with, any users of the Service (whether online or offline). Your interactions with other users are solely between you and such users and Kersten’s is not responsible or liable for any loss, damage, injury or harm which results from these interactions. In addition, enforcement of this Agreement is solely in Kersten’s discretion, and the absence of enforcement in some instances does not constitute a waiver of Kersten’s right to enforce this Agreement in other instances. This Agreement does not create any private right of action on the part of any third party or any reasonable expectation or promise that the Service will not contain any content that is prohibited by this Agreement.
11. User Content. In the course of using the Service, you may transmit or otherwise make available certain content, including information about yourself, content, messages, materials, data, information, text, photos, graphics, code or other items or materials (“User Content”) through interactive areas or services, such as posting items for sale, making an offer, private messaging, or other areas or services. User Content may be publicly viewable in some instances. Kersten’s reserves the right, but does not have the obligation, to remove, screen or edit any User Content posted, transmitted, or stored on the Service at any time and for any reason without notice. You will not (and will not allow or authorize any third-party to) post, upload to, transmit, distribute, store, create, solicit, disclose, or otherwise, publish through the Service any of the following:
- User Content that is, in Kersten’s judgment, disrespectful or may expose Kersten’s, Users or others to harm or liability;
- User Content that may infringe the patent, trademark, trade secret, copyright, intellectual, privacy or proprietary right of any party;
- Private information of any third parties, including addresses, phone numbers and payment card information;
- Viruses, corrupted data or other harmful, disruptive, or destructive files; or
- User Content that inhibits any other person from using or enjoying the Service.
You are solely responsible for creating backup copies of and replacing your User Content at your sole cost and expense. You acknowledge and agree that Kersten’s is not responsible for any errors or omissions that you make in connection with the Service. By submitting or posting User Content, you hereby grant to Kersten’s a non-exclusive, transferable, royalty-free, perpetual, irrevocable, sublicensable right to use, reproduce, modify, adapt, publish, translate, sell, create derivative works from, distribute, perform, and display the User Content, and your name, company name, location and any other information you submit with the User Content, in connection with the Service. The use of your or any other User’s name, likeness, or identity in connection with the Service does not imply any endorsement thereof unless explicitly stated otherwise. Kersten’s also has the right to disclose your identity to any third party who is claiming that any content posted by you constitutes a violation of their intellectual property rights, or of their right to privacy.
12. Moderation. You agree that Kersten’s may moderate access to and use of the Service in Kersten’s sole discretion through any means (including, for example, blocking, filtering, deletion, delay, omission, verification, and/or termination of your access. Furthermore, Kersten’s has the right to remove any posting you make on the Service if, in Kersten’s opinion, your post does not comply with the content standards set out in this Agreement. You agree not to bypass or attempt to bypass such moderation. You further agree that Kersten’s is not liable for moderating, not moderating or making any representations regarding moderating.
13. Third Party Materials, Services or Content. Though your use of the Service, you may have access to certain information, products, services and other materials made available by third parties, including Listings and other Submissions including, without limitation, the Kersten’s Payment Solution (“Third Party Materials”), or allow for the routing or transmission of such Third Party Materials. Kersten’s does not control or endorse, and are not responsible for, any Third Party Materials and make no representations or warranties about them. Kersten’s may not monitor Third Party Materials, and Kersten’s may block or disable access to any Third Party Materials through the Service at any time. The availability of any Third Party Materials through the Service does not imply Kersten’s endorsement of, or Kersten’s affiliation with, any provider of Third Party Materials. YOU USE THIRD PARTY MATERIALS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS OR POLICIES APPLICABLE TO SUCH THIRD PARTY MATERIALS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY MATERIALS).
14. Feedback. Any comments or materials sent to Kersten’s, including, but not limited to, ideas, questions, comments, suggestions, feedback or the like regarding the Service or any other products or services of Kersten’s (collectively, “Feedback”), is non-confidential and will become Kersten’s sole property. Kersten’s will have no obligation to you of any kind, monetary or non-monetary, with respect to such Feedback and will be free to reproduce, use, disclose, exhibit, display, transform, create derivative works from and distribute the Feedback to others without limitation or obligation. You waive any rights you may have to the Feedback (including any copyrights or moral rights). Further, you agree not to submit any feedback that is defamatory, illegal, offensive or otherwise violates any right of any third party, or breaches any agreement between you and any third party.
15. Kersten’s Proprietary Rights. Kersten’s owns the Service, which is protected by proprietary rights and laws. Kersten’s trade names, trademarks and service marks include the Kersten’s name, in whole or in part, and any associated logos. All trade names, trademarks, service marks and logos on the Service not owned by Kersten’s are the property of their respective owners. You may not use Kersten’s trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Service should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner.
17. Copyright Infringement Claims. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides a process for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Service infringe your copyright, you (or your agent) may send Kersten’s a written notice by mail, e-mail or fax, requesting that Kersten’s remove or block access to such material. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Kersten’s a counter-notice. Notices and counter-notices must meet the statutory requirements imposed of the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Kersten’s DMCA Agent as follows: By mail to Kersten’s, P.O. Box 924, New York, NY 10014; by e-mail to [email protected]’s.com. Kersten’s suggests that you consult your legal advisor before filing a DMCA notice or counter-notice.
18. Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
19. Jurisdictional Issues. The Service is controlled or operated (or both) from the United States, and is not intended to be subject Kersten’s to any non-U.S. jurisdiction or law. The Service may not be appropriate or available for use in some non-U.S. jurisdictions. Kersten’s may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that Kersten’s chooses.
20. Changes. Kersten’s may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Service. Any such changes will not apply to any dispute between you and Kersten’s arising prior to the date on which Kersten’s posted the revised Agreement incorporating such changes, or otherwise notified you of such changes. Your use of the Service following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. Kersten’s may, at any time and without liability, modify or discontinue all or part of the Service; charge, modify or waive any fees required to use the Service; or offer opportunities to some or all Service users.
21. Suspension; Termination. Kersten’s may revoke or terminate your rights to access or use the Service for any reason without notice at Kersten’s sole discretion. Without limiting the generality of the foregoing, Kersten’s may revoke or terminate your rights to use the Service if you: (i) breach any obligation in this Agreement or in any other agreement between you and Kersten’s, (ii) violate any policy or guideline applicable to the Service or Materials, or any other Kersten’s product or service, or (iii) use the Service or the Materials other than as specifically authorized in this Agreement, without Kersten’s prior written permission. You will stop accessing or using the Service immediately if Kersten’s suspends or terminates your rights to access or use the Service. Kersten’s reserves the right, but does not undertake any duty, to take appropriate legal action including the pursuit of civil, criminal, or injunctive redress against you for continuing to use the Service during suspension or after termination. Kersten’s may recover its reasonable attorneys’ fees and court costs from you for such action. This Agreement will remain enforceable against you while your rights to access or use the Service is suspended and after it is terminated.
You may also terminate your rights hereunder to access or use the Service by closing your Account at any time.
22. Disclaimer of Warranties. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE SERVICE AND ANY THIRD PARTY MATERIALS ARE MADE AVAILABLE TO YOU BY KERSTEN’S ON AN “AS IS,” “WHERE IS,” “WHERE AVAILABLE” AND “WITH ALL FAULTS” BASIS, WITHOUT ANY WARRANTIES BY KERSTEN’S OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) KERSTEN’S DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICE AND ANY LISTINGS AND THIRD PARTY MATERIALS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH KERSTEN’S AND ITS AFFILIATES AND THEIR RESPECTIVE OWNER, SHAREHOLDERS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED PARTIES”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. Kersten’s does not guarantee that the Service is or will remain available updated, complete, correct, secure, or that access to the Service will be uninterrupted. The Service may include inaccuracies, errors, and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Service. If you become aware of any such alteration, contact Kersten’s at [email protected] with a description of such alteration and its location on the Service.
23. Assumption of Risk. YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS ASSOCIATED WITH UTILIZING AN INTERNET-BASED MARKETPLACE AND INTERACTING WITH OTHER USERS IN PERSON. KERSTEN’S DOES NOT INVESTIGATE OR VERIFY ANY USER’S REPUTATION, CONDUCT, MORALITY, CRIMINAL BACKGROUND, OR ANY INFORMATION USERS MAY SUBMIT TO THE SERVICES. YOU ARE SOLELY RESPONSIBLE FOR TAKING ALL NECESSARY PRECAUTIONS WHEN INTERACTING WITH OTHER USERS, PARTICULARLY WHEN MEETING A STRANGER IN PERSON FOR THE FIRST TIME. IT IS POSSIBLE THAT OTHER USERS MAY ATTEMPT TO PHYSICALLY HARM OR DEFRAUD YOU OR OBTAIN INFORMATION FROM YOU FOR FRAUDULENT PURPOSES. YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, SELLING AND BUYING THROUGH KERSTEN’S SERVICE (INCLUDING ALL ONLINE AND OFFLINE INTERACTIONS WITH OTHER USERS).
24. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) KERSTEN’S WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, KERSTEN’S WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICE OR FROM ANY LISTINGS OR TRANSACTIONS OR TRANSFERS RELATING TO LISTINGS, OR FROM ANY THIRD PARTY MATERIALS, INCLUDING FROM ANY DISPUTE WITH ANY OTHER USER OF THE SERVICE; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE OR ANY THIRD PARTY MATERIALS IS TO STOP USING THE SERVICE; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF KERSTEN’S FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF (I) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO KERSTEN’S TO USE THE SERVICE, OR (II) TWENTY-FIVE U.S. DOLLARS ($25.00). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH KERSTEN’S AND THE AFFILIATED PARTIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
25. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless Kersten’s and the Affiliated Parties, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use of, or activities in connection with, the Service (including all Submissions); (b) any Listings, transactions or transfers relating to Listings, or disputes with other users of the Service; and (c) any violation or alleged violation of this Agreement by you.
26. Governing Law; Arbitration. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of Oklahoma, without regard to its principles of conflicts of law, and regardless of your location. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND KERSTEN’S, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT KERSTEN’S AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. EXCEPT AS PROVIDED BELOW REGARDING THE CLASS ACTION WAIVER, SUCH DISPUTES INCLUDE, WITHOUT LIMITATION, DISPUTES ARISING OUT OF OR RELATING TO INTERPRETATION OR APPLICATION OF THIS ARBITRATION PROVISION, INCLUDING THE ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THE ARBITRATION PROVISION OR ANY PORTION OF THE ARBITRATION PROVISION. ALL SUCH MATTERS SHALL BE DECIDED BY AN ARBITRATOR AND NOT BY A COURT OR JUDGE. HOWEVER, AS SET FORTH BELOW, THE PRECEDING ARBITRATION REQUIREMENT SHALL NOT APPLY TO DISPUTES TO THE EXTENT RELATING TO THE INTERPRETATION OR APPLICATION OF THE CLASS ACTION WAIVER BELOW, INCLUDING ITS ENFORCEABILITY, REVOCABILITY OR VALIDITY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. Notwithstanding anything to the contrary in this Section or any other provision of this Agreement or in the American Arbitration Association’s Consumer Arbitration Rules, disputes regarding the enforceability, revocability or validity of the foregoing class action waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action, and (2) there is a final judicial determination that all or part of such class action waiver is unenforceable, then the class, collective, and/or representative action, to that extent, must be litigated in a civil court of competent jurisdiction, but the portion of such class action waiver that is enforceable shall be enforced in arbitration. The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online https://www.adr.org/consumer. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by Kersten’s that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against Kersten’s for you. Without limiting the foregoing, any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts sitting in Tulsa County, Oklahoma.
27. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Kersten’s. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without Kersten’s express prior written consent. Kersten’s may assign, transfer or sublicense any or all of Kersten’s rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Kersten’s relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Kersten’s relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Service or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Kersten’s will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.