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Welcome to Kerry Auctions!
The following Terms and Conditions (the "Agreement") sets forth the legally binding terms and conditions between you and Kerry Auctions, its parents, subsidiaries, affiliates, officers, representatives, and directors (collectively, "Kerry Auctions," "we," "us" or "our") governing your use of the Kerry Auctions website and services (collectively "Services").
The Service is offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other rules, policies, and procedures that may be made available on the Service from time to time.
Please read this Agreement and any additional terms applicable to your use of the Services before using it. By accessing or using the Services as a registered user or not, you confirm your agreement to be bound by this Agreement. This Agreement expressly supersedes prior agreements or arrangements with you regarding your use of the Services.
IMPORTANT ARBITRATION NOTICE: THESE TERMS CONTAIN AN ARBITRATION CLAUSE AFFECTING YOUR LEGAL RIGHTS. PLEASE READ THE ARBITRATION CLAUSE CAREFULLY, AS IT REQUIRES YOU TO ARBITRATE DISPUTES WITH KERRY AUCTIONS ON AN INDIVIDUAL BASIS, LIMITS YOUR ABILITY TO SEEK RELIEF IN A COURT OF LAW, AND WAIVES YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS OR CLASS ARBITRATIONS.
1. Definitions
"We" and "us" refer to Kerry Auctions.
"User," "you," and "your" refer to the user accessing our Website or participating in our auctions.
"Auction" refers to the online sale of whisky and related collectibles through the Website facilitated by Kerry Auctions.
"Lot" refers to a single item or group of items offered for sale in an Auction.
"Bid" refers to an offer made by a User to purchase a Lot during an Auction.
"Hammer Price" refers to the final price at which a Lot is sold during an Auction, excluding any applicable commissions, fees, or taxes.
"Purchase Price" is the Hammer Price plus applicable Buyer's Premium and additional expenses.
"Buyer" refers to the User who submits the highest Bid for a Lot and becomes the successful purchaser of that Lot.
"Seller" refers to the individual or entity that has consigned a Lot to Kerry Auctions for sale through an Auction.
2. Changes to the Agreement
We may modify the terms and conditions of this Agreement at any time, at our sole discretion, as they are subject to change. If we do so, we will let you know either by posting the modified Agreement on the Service or through other communications, such as the mobile phone number and email address registered in your account. It is important that you review the Agreement whenever we modify them because if you continue to use the Kerry Auctions Services after such modification, you are indicating to us that you agree to be bound by the modified Agreement.
3. Eligibility, Account Registration and Security
Eligibility. To use the Service and participate in Auctions, you must be at least 21 years of age, have the legal capacity to enter into binding contracts, and not be barred from accessing the Website or its services under applicable laws or regulations.
Registration. To use the Service, you must register an account on the website and provide accurate, complete, and up-to-date information. You will be required to make a one-time, non-refundable payment of $5 to verify your registration. This fee will be applied towards your buyer's commission or Seller's commission on a future Auction (valid for six months after registration).
Account security. You are solely responsible for maintaining the confidentiality of your account information and for all activities that occur under your account. You must notify Kerry Auctions immediately of any unauthorized use of your account or any other breach of security.
Account suspension or termination. Kerry Auctions reserves the right to suspend, restrict, or terminate your account at any time, with or without cause, and without prior notice, if we believe that you have violated the Agreement or applicable laws.
4. Intellectual Property Rights, License, and Restrictions
All intellectual property rights in and to the Kerry Auctions services are owned, controlled, and operated by Kerry Auctions, and all material on the Service, including but not limited to software, images, illustrations, user interface, text, scripts, graphics, audio clips, video clips, and other interactive features (collectively the "Kerry Auctions Content"), made available to you on the Service. Kerry Auctions owns logos, trademarks, and service marks contained herein. All other service marks, logos, and names on the Kerry Auctions Service are the property of their respective owners.
Any use of the Service or the contents made available to you on the Service other than as specifically authorized herein without our prior written permission is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise. Kerry Auctions reserves the right to revoke this license at any time, without notice, and with or without cause.
Subject to your compliance with the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the Platform subject to the Terms of this Agreement. Any rights not expressly granted herein are reserved by us.
You may not: (i) remove any copyright, trademark, or other proprietary notices from any portion of the Service; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Service except as expressly permitted by us; (iii) decompile, reverse engineer or disassemble the Service except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Service; or (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Service or unduly burdening or hindering the operation and/or functionality of any aspect of the Service.
5. Auctions and participation
Auction. Our auctions are conducted online and are open to registered users. Auctions will have a specified start and end date, and bids will be accepted during this time. All Bids are binding and cannot be retracted.
Bidding. By placing a Bid, you represent and warrant that you have the legal capacity and authority to enter into a binding contract, and you agree to be bound by the terms of the Auction and to complete the transaction if you are the successful Buyer. Bids are legally binding and cannot be retracted or revoked once submitted.
Auction catalog. Kerry Auction will provide an online Auction catalog containing detailed descriptions, condition reports, and images of the Lots offered for sale. Users are responsible for reviewing the Auction catalog and satisfying themselves with the accuracy and completeness of the information provided.
Auction conduct. We reserve the right to refuse any bid, withdraw any Lot from an Auction, cancel any Auction at our sole discretion, or withdraw or re-offer lots for sale (including after the fall of the hammer) if we believe that there may be an error or dispute, and may also take such other action as we reasonably deem necessary. We may also impose bidding increments, reserve prices, or other conditions on Auctions as we deem appropriate.
Cancellation of listings, bids, and auctions. Kerry Auctions reserves the right to cancel, rescind, or revoke any Lot listing, Bid, or Auction at its sole discretion, without prior notice or liability, and we shall not be responsible for any losses or damages incurred by a user as a result of such cancellations.
Bidder responsibility. By participating in an Auction, you acknowledge and agree that they are responsible for monitoring the progress of the Auction, including tracking your own Bids and the current leading Bid. We will not be responsible for any failure by you to receive notifications or updates related to an Auction.
All sales are final, sold “as is,” and are non-cancellable and non-refundable under any circumstances, including shipping limitations.
Prohibited bidding conduct. Users are prohibited from engaging in any form of bid manipulation, collusion, or other unethical or illegal bidding practices. This includes, but is not limited to, the use of software or automated systems to place Bids, the creation of fake or multiple accounts, or any attempts to interfere with the proper functioning of the Auction process.
Pickup or local delivery. Purchased Lots must be picked up from our location within 15 working days of the auction or arranged for local delivery within Massachusetts at an additional cost. The buyer assumes all risks associated with packing and handling of items. Kerry Auctions shall not be responsible for any actions or oversights by third-party packers or shippers.
If the Buyer fails to collect the purchased lot within 20 working days after the auction, it will be stored at the Buyer's expense and risk either at Kerry Auctions' premises or in independent storage.
If a lot remains uncollected after 6 months from the auction date, Kerry Auctions will provide the Buyer with a 60-day written notice. After this period, Kerry Auctions reserves the right to re-sell the lot either by auction or privately, with estimates and reserves determined at Kerry Auctions' discretion. The proceeds from the sale, after deducting all associated costs, will be forfeited unless collected by the Buyer within 2 years from the original auction date.
6. Consignment and Authenticity
Consignment. Kerry Auctions offers Lots for Auction on a consignment basis, meaning the Lots are owned by third-party Sellers and provided to us for sale.
Authenticity evaluation. Kerry Auctions makes reasonable efforts to ensure the authenticity of the Lots offered for Auction, including thorough inspection, expert evaluation, and industry-standard authentication techniques. However, we do not guarantee the authenticity of any Lot and recommend that Buyers conduct their own due diligence.
Condition reports. While we provide detailed condition reports for each Lot prepared by our team of specialists, Buyers are still responsible for inspecting the Lots and satisfying themselves with the condition prior to bidding.
Discrepancies. If a Buyer discovers a significant discrepancy between the condition of a Lot and its description or suspects the Lot is counterfeit, they must notify Kerry Auctions immediately by sending an email to sales@kerryauctions.com. We reserve the right to make the final determination on any claimed discrepancies or authenticity issues.
7. Fees and Commissions
Buyer's premium. The buyer's premium is set at 15% of the final Hammer Price.
Seller's commission. The Seller's commission is set at 15% of the final Hammer Price.
Registration fee. Upon registering for the Website and to participate in Auctions, Users must make a one-time, non-refundable payment of $5 to verify their registration.
Other fees. Kerry Auctions reserves the right to charge additional fees for certain services, such as insurance, storage, restoration, or special handling, as disclosed on the Website.
8. Seller Obligations and Payment Terms
Seller representations and warranties. By consigning a Lot to Kerry Auctions for sale, the Seller represents and warrants that:
i. They are the sole and absolute owner of the Lot, with full legal right, title, and authority to transfer ownership and consign the Lot for sale.
ii. The Lot is authentic and genuine, and the Seller has accurately and completely described the Lot's condition, provenance, and any known defects or restoration work.
iii. The Lot is free from any liens, encumbrances, or third-party claims of ownership or other rights.
iv. The Seller has not engaged in any illegal, fraudulent, or deceptive conduct in connection with the Lot or its consignment.
Seller's right to withdraw. The Seller may withdraw a consigned Lot from an Auction at any time prior to the start of the Auction by providing written notice to us. However, the Seller shall remain responsible for any fees or commissions incurred up to the point of withdrawal.
Payment to Seller. Subject to prior receipt of cleared funds by Kerry Auctions and contingent upon the conditions outlined below, Kerry Auctions shall send the Seller the Net Sale Proceeds dollars (USD). This payment will occur either 30 days after the sale date or 5 working days after receipt of cleared funds from the Buyer, whichever is later. The Net Sale Proceeds will be the sale amount minus any other amounts owed by the Seller to Kerry Auctions.
Kerry Auctions reserves the right to rescind the sale if it reasonably believes that the Lot is Counterfeit. In such cases, Kerry Auctions will send the Seller a notice of rescission, and the Seller agrees to return to Kerry Auctions the Net Sale Proceeds received from the sale of such Property together with any additional expenses incurred by Kerry Auctions. Kerry Auctions will return the Lot to the Seller upon receipt of the Net Sale Proceeds and Expenses unless prevented from doing so for reasons beyond Kerry Auctions' control.
Kerry Auctions also reserves the right to withhold payment to Sellers in the event of any disputes or claims related to the Lot's authenticity, condition, or ownership, or any other breach of the Seller's representations, warranties, or obligations under these Terms.
9. Buyer Obligations and Payment Terms
Buyer representations and warranties. By participating in an Auction and submitting a Bid, the Buyer represents and warrants that:
i. They have the legal capacity and authority to enter into a binding contract and are not subject to any legal disabilities or restrictions that would prevent them from participating in the Auction or completing the purchase.
ii. They have carefully reviewed and understood the Auction catalog, including the descriptions, condition reports, and any additional information provided by Kerry Auctions regarding the Lots.
iii. They have conducted their own due diligence and independent research regarding the Lots and have not relied solely on the information provided by Kerry Auction.
iv. They have sufficient funds or financing to complete the purchase of any Lots for which they are the successful Bidder.
v. All sales are final, sold “as is,” and are non-cancellable and non-refundable under any circumstances, including shipping limitations.
Buyer indemnification. The Buyer agrees to indemnify, defend, and hold harmless Kerry Auctions, its affiliates, subsidiaries, officers, directors, employees, and agents from and against any and all claims, liabilities, damages, losses, costs, and expenses (including reasonable attorneys' fees) arising out of or related to:
i. Any breach of the Buyer's representations, warranties, or obligations under these Terms.
ii. Any claims, disputes, or legal proceedings relating to the Buyer's participation in an Auction or their purchase of a Lot.
iii. Any claims, disputes, or legal proceedings relating to the Buyer's conduct or actions in connection with an Auction or their purchase of a Lot.
Payment by Buyers. Successful Buyers must make full payment for any Lots they have won, including the Hammer Price, Buyer's Premium, and any applicable taxes or fees, within 5 working days after the conclusion of the Auction, unless otherwise agreed upon in writing. Payment must be made using any of the approved payment methods made available by Kerry Auctions.
Late payment. If a Buyer fails to make full payment within the specified time frame, Kerry Auctions reserves the right to:
i. Cancel the sale and offer the Lot to the next highest Bidder or at a subsequent Auction.
ii. Impose late payment fees or interest charges on the outstanding balance.
iii. Suspend or terminate the Buyer's account and prohibit them from participating in future Auctions.
iv. Pursue legal action to recover the outstanding payment, including reasonable attorneys' fees and other costs incurred.
Transfer of ownership and risk. Ownership and risk of loss or damage to a Lot shall pass to the Buyer upon Kerry Auction's receipt of full payment for the Lot. The Buyer is solely responsible for arranging and paying for any necessary insurance, shipping, or handling of the Lot after payment has been made.
10. Your Content and Submissions
The Kerry Auctions website may allow you to share various types of content, including posts, photos, links, text, and other files and information about yourself ("Content"), with other users of the Kerry Auctions Service. Your Content belongs to you, and this Agreement does not grant us any rights to it, except for the limited rights necessary for us to provide the Services. The submission of communications (such as commentary on other users' content) and other content submitted by users of the Service, as well as the hosting, sharing, and/or publishing of such content, are referred to as "Your Content."
You are solely responsible for all consequences of sharing, posting, or publishing Your Content. You agree that Kerry Auctions has no liability regarding any of your content, and you hereby release Kerry Auctions, its officers, directors, employees, agents, representatives, and affiliates from any liability arising from or related to your content.
Kerry Auctions does not endorse any User Content, submission, opinion, recommendation, or advice expressed therein and expressly disclaims all responsibility or liability in connection with User Content Submissions. You acknowledge the global nature of the Internet and agree to comply with all local rules and laws regarding your use of the Service, including online conduct and acceptable content.
You acknowledge that Kerry Auctions may not pre-screen content and has the right, in its sole discretion, to remove any User Content at any time, with or without notice.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information about the Service provided by you to Kerry Auctions are non-confidential, and Kerry Auctions can use and disseminate them for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
11.Copyright Infringement and DMCA Notification
Kerry Auctions respects the intellectual property of others and asks its users of the Services to do the same. Kerry Auctions' Service may not be used to transmit, retransmit, distribute, post, or store any material that violates any rights of any person, including rights protected by copyright, trade secret, patent, or other intellectual property or similar laws or regulations.
We have established procedures for enforcing this statement, which are designed to be in accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA"). If you believe that your copyrighted work has been copied and is accessible on our website in a way that constitutes copyright infringement, please notify us by sending us an email at info@kerryauctions.com.
In order to be valid, the notification must be in writing and must contain the following information and be submitted to us:
i. a description of the copyrighted content or other intellectual property that you claim has been infringed;
ii. a statement by you that you have a good faith belief that the use of this content or intellectual property is not authorized and for which reason;
iii. a detailed description of where this content or intellectual property is located on the Service, for us to find it;
iv. your address, telephone number, and email address;
v. a signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
vi. a statement by you, made under penalty of perjury, that the above information provided by you in the notification is accurate and that you are the copyright or intellectual property owner or authorized to act on behalf of the copyright or intellectual property owner.
Please note that any person who knowingly misrepresents to Kerry Auctions that material is infringing shall be liable to Kerry Auctions and/or the alleged infringer for any damages (including costs and attorneys' fees) suffered or incurred by Kerry Auctions and/or the alleged infringer as a result of Kerry Auctions' reliance on such misrepresentation and removing or disabling access to such material. ii) Similarly, any person who knowingly misrepresents to Kerry Auctions that the material was removed or access blocked by mistake or misidentification shall be liable to Kerry Auctions and/or the copyright owner or its authorized licensee for any damages (including costs and attorneys' fees) suffered or incurred by Kerry Auctions and/or the copyright owner or its authorized licensee as a result of Kerry Auctions relying on such misrepresentation and replacing such removed or blocked material.
12. User Representation and Acceptable Use
Although we are committed to providing a safe user experience, we do not guarantee that the Service, or any content in it, will be safe, error-free, or uninterrupted or that it will be free from bugs or viruses.
You may not access or use the Service for any purpose other than that for which we make the service available. The service may not be used in connection with any commercial endeavors except those we endorse or approve.
As a user of the Service, you agree not to:
i. Systematically retrieve data or other content from the Service to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
ii. Trick, defraud, or mislead us and other users, especially in any attempt to get sensitive account information such as user passwords.
iii. Circumvent, disable, or otherwise interfere with security-related features of the Service, including features that prevent or restrict the use or copying of any content or enforce limitations on the use of the Service and/or the Content contained therein.
iv. Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Service.
v. Use any information obtained from the Service in order to harass, abuse, or harm another person.
vi. Make improper use of our support services or submit false reports of abuse or misconduct.
vii. Use the Service in a manner inconsistent with any applicable laws or regulations.
viii. Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party's uninterrupted use and enjoyment of the Service or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Service.
ix. Engage in any automated use of the system, such as using scripts to send comments or messages or using any data mining, robots, or similar data gathering and extraction tools.
x. Delete the copyright or other proprietary rights notice from any Content.
xi. Attempt to impersonate another user or person or use the username of another user.
xii. Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats ("gifs"), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as "spyware" or "passive collection mechanisms" or "pcms").
xiii. Interfere with, disrupt, or create an undue burden on the Service or the networks or services connected to the Service.
xiv. Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Service to you.
xv. Attempt to bypass any measures of the Service designed to prevent or restrict access to the Service or any portion of the Service.
xvi. Decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Service.
xvii. Except as may be the result of a standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including, without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Service, or using or launching any unauthorized script or other software.
xviii. Make any unauthorized use of the Service, including collecting users' usernames and/or email addresses by electronic or other means to send unsolicited emails or create user accounts by automated means or under false pretenses.
The content you access: It is possible that other users (including unauthorized users or "hackers") may post or transmit offensive or obscene materials on the Services and that you may be involuntarily exposed to such offensive and obscene materials. It also is possible for others to obtain personal information about you due to your use of the Services, and the recipient may use such information to harass or injure you. We do not approve of such unauthorized uses, but by using the Services, you acknowledge and agree that we are not responsible for the use of any personal information that you publicly disclose or share with others on the Services. Please carefully select the type of information that you publicly disclose or share with others on the Services.
13. Privacy
By making use of the Kerry Auctions Service, you further agree to be bound by the Kerry Auctions Privacy Policy. Kindly read our privacy policy, as it will help you understand how and why we collect, make use of, and share information that we collect about you and the rights that you have over your information.
14. Third-Party Content and Resources
Some links on the Services may allow you to leave the Service. The linked sites are not in any way under the control of Kerry Auctions, and we are not responsible for the contents of any of such linked sites, any link contained in a linked site, or any changes or updates to such sites.
Kerry Auctions is not responsible for any form of transmission sent or received from any linked site. We are providing these links to you only as a convenience, and the inclusion of any link does not imply affiliation, adoption, or endorsement by us of the site. Your use of any linked site is at your own risk and is subject to the terms of use and privacy policies located on such site.
You understand that any content or information made available or expressed by a third party on the Kerry Auctions Service is that of the respective owner(s) and not that of Kerry Auctions. Kerry Auctions neither approves nor is responsible for the accuracy, currency, or reliability of any content, opinion, information, advice, or statement made on the Service by anyone.
15. Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR COURSE OF PERFORMANCE.
KERRY AUCTIONS, ITS SUBSIDIARIES, AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT A) THE SERVICE WILL FUNCTION UNINTERRUPTED, SECURE, OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; B) ANY ERRORS OR DEFECTS WILL BE CORRECTED; C) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS.
WE RESERVE THE EXCLUSIVE RIGHT TO ALTER OR TERMINATE THE SERVICE, ALONG WITH IT FEATURES OR FUNCTIONALITIES, AT ANY TIME, WITH OR WITHOUT PRIOR NOTICE TO YOU. WE ARE NOT RESPONSIBLE TO YOU OR ANY THIRD PARTY FOR THE EXERCISE OF THIS RIGHT. CHANGES MAY INVOLVE ADJUSTMENTS IN THE PRICING MODEL AND THE INTRODUCTION OF EITHER FREE OR PAID SERVICES. ADDITIONALLY, ANY NEW FEATURES THAT IMPROVE OR EXPAND THE EXISTING SERVICES WILL ALSO ADHERE TO THESE TERMS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
16. Indemnification
Your duty to indemnify. You will defend, indemnify, and hold harmless Kerry Auctions and our officers, directors, employees, agents, successors, and assigns from and against any third-party claims, losses, liabilities, damages, expenses, and costs (including attorney's fees) arising from or related to (a) your use of our Services, (b) your Content, (c) your violation of these Terms, or (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights).
Control of defense. We will reasonably notify you of any claim subject to indemnification, but you will control the defense. We may participate in the defense at our own expense. You may not settle any claim without our consent if it includes a financial or specific performance obligation on or admission of liability by us.
17. Limitation of Liability
YOU AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KERRY AUCTIONS WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY.
IN NO EVENT SHALL KERRY AUCTIONS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, VENDORS OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY WITH RESPECT TO THE SERVICE (OR ANY CONTENT, PROGRAMS OR INFORMATION AVAILABLE THROUGH THE SERVICE): (I) FOR ANY LOST PROFITS OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT OR INFORMATION OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT OR INFORMATION POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE AT OR THROUGH THE KERRY AUCTIONS SERVICE, OR (IV) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) USD $50.00 OR ANY AMOUNT YOU PAID TO KERRY AUCTIONS IN THE LAST SIX MONTHS FOR THE SERVICES GIVING RISE TO THE CLAIM.
IN ADDITION, KERRY AUCTIONS SHALL NOT BE LIABLE FOR ANY LOSS OR LIABILITY RESULTING, DIRECTLY OR INDIRECTLY, FROM THE USER'S INABILITY TO ACCESS OR OTHERWISE USE THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY DELAYS OR INTERRUPTIONS DUE TO ELECTRONIC OR MECHANICAL EQUIPMENT FAILURES, DENIAL OF SERVICE ATTACKS, PROCESSING FAILURES, TELECOMMUNICATIONS OR INTERNET PROBLEMS OR UTILITY FAILURES).
18. Terms; Termination
Term. The terms and conditions in this Agreement remain effective until terminated.
Termination. You may stop using our Services and terminate this Agreement at any time. We also reserve the right to suspend or terminate your access if you materially breach this Agreement or refuse to make payment for your use of the Service. Upon any termination, you may lose the right to access or use our Services and your content.
Effects of Termination. Termination does not relieve you of obligations to pay fees or liability for acts prior to termination. Upon termination of your account, you may lose access to your account and content.
19. Governing Law
These Terms and your use of the Services shall be governed by and construed in accordance with the U.S. Federal Arbitration Act, federal arbitration law, and laws of the State of Massachusetts applicable to agreements made and to be entirely performed within the State of Massachusetts, without regard to its conflict of law principles.
20. Dispute Resolution; Arbitration
Dispute with other users of Kerry Auctions. In the event that you find yourself in dispute with other users of Kerry Auctions Services or a third party, we advise you to contact such a party and try to resolve the dispute amicably. You further release Kerry Auctions or any of its employees, directors, officers, agents, or suppliers from any claims, damages, and demands that may arise out of disputes with other parties or users of the Kerry Auctions Services.
Dispute with Kerry Auctions. To expedite dispute resolution and control the cost of any dispute, controversy, or claim related to this Agreement (or the breach, termination, enforcement, interpretation, or validity thereof) ("Dispute"), you, as a user of Kerry Auctions' Service, agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration. Such informal negotiations commence upon written notice from one person to the other. We are available by email at info@kerryauctions.com to address any concerns or questions that you may have regarding your use of Kerry Auctions' Service and services.
In the event that a dispute is not settled through the informal negotiation, any controversy or claim arising out of or relating to these Terms shall be settled by binding arbitration administered by the American Arbitration Association (AAA) in accordance with its comprehensive arbitration rules and procedures by a sole arbitrator. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section. Judgment on the arbitration award may be entered in any court having competent jurisdiction. Unless otherwise expressly required by applicable law, each party shall bear their own costs of legal and expert fees incurred in the arbitration, irrespective of the outcome.
Notwithstanding the above, we reserve the right to pursue injunction proceedings before any court of competent jurisdiction to protect or enforce our intellectual property rights arising from these Terms.
You and Kerry Auctions agree, to the fullest extent permitted by applicable law, that each may bring claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, if the parties' dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims and may not otherwise preside over any form of a representative or class proceeding.
21. General Provisions
Assignment. Users may not transfer or assign any rights under these Terms. We reserve the right to transfer or assign our rights and obligations under these Terms in connection with a merger, acquisition, or sale of assets by operation of law or otherwise.
Severability. If any provision of these Terms is found unenforceable, only that provision will be removed, and the remaining terms will stay effective.
Waiver. No waiver of any of the provisions of this Agreement will constitute a continuing waiver unless otherwise expressly so provided in writing. The failure of either Party to enforce any of the provisions of this Agreement at any time will in no way be construed to be a present or future waiver of such provisions. We do not guarantee that we will pursue legal actions against all breaches of this Agreement.
Service Interruptions, Crashes, or Outages. Kerry Auctions cannot guarantee uninterrupted or constant availability of the Services. Both unscheduled and scheduled interruptions may occur. Periodically, various factors beyond Kerry Auctions' control may cause interruptions, delays, crashes, outages, errors, or other obstacles in delivering the Services. Some of these factors might require scheduled or unscheduled site maintenance or service downtime (collectively referred to as "Downtime").
During scheduled maintenance or downtime, users may receive notifications, and we will strive to complete such scheduled maintenance promptly. However, in the event of an unscheduled downtime, such as a crash, our objective will be to reasonably resolve the issue and restore the service as swiftly as possible. Throughout these scheduled or unscheduled downtimes, users may experience an inability to transmit or receive data through the website.
You acknowledge and understand that during any period of such downtime, a portion or all of the Services may become inaccessible. Furthermore, you accept that Kerry Auctions will not be held liable or responsible for any inconvenience or losses you may experience due to such downtime, including any temporary or permanent loss of user content.
Force Majeure. Notwithstanding the other provisions of this Agreement, if Kerry Auctions is in good faith prevented from performing its obligations under this Agreement because of an event beyond its control, including without limitation, any act or omission of our third-party partners, war (declared or undeclared), terrorism, explosions, pandemics, and acts of God like an earthquake, flood, hurricanes, tornadoes, and other natural calamities, Kerry Auctions will be relieved from performing its obligations provided that, it will take all reasonable steps to promptly remedy the cause of such delay or failure if it is in its power to do so.
22. Questions or complaints?
Feedback, comments, requests for technical support, and other communications relating to the Services should be directed to us. Please contact us at info@kerryauctions.com.