SALE AGREEMENT FOR EXCESS INVENTORY
This Agreement Sears Logistics Services, Inc. (“SLS”) is selling excess merchandise inventory from and on behalf of Sears, Roebuck and Co. (“Sears”) and Kmart Corporation (“Kmart”) (such inventory referred to as “Excess Inventory”) to you (“Purchaser”), located at various locations within in the United States. The parties agree that all purchases of Excess Inventory by Purchaser from SLS are governed by this Agreement and Purchaser agrees to comply with all of the following terms and conditions.
1. Payment terms. Purchaser shall make all payments for the Excess Inventory to "Sears Logistics Services, Inc." by wire transfer or bank certified check (with SLS’s prior approval). Cash payments are not accepted.
In the event that you do not pay for any given winning bid, you may be given the chance to pay a reinstatement fee, in order to prevent the deactivation of your account. The fee amounts are as follows, within any 12-month period:
1st Offense: $0-$10,000 Purchase Price: $100 Fee
1st Offense: $10,000+ Purchase Price: $500 Fee
2nd Offense: $0-$10,000 Purchase Price: $500 Fee
2nd Offense: $10,000+ Purchase Price: $1,000 Fee
3rd Offense: $1,000 Fee
2. All Sales “As Is”. Purchaser acknowledges that all Excess Inventory purchased under this Agreement is purchased "as is", "where is", without any express or implied warranty of any nature or type whatsoever, except warranty of title, and particularly without any warranties of merchantability or fitness for a particular purpose. such warranties being expressly disclaimed. Furthermore, SLS, Sears and Kmart disclaim any liability for any indirect, incidental, or consequential damages, as a result of the use, sale, or purchase of any of the Excess Inventory, or the refusal of SLS, Sears and Kmart to sell to Purchaser under this Agreement.
3. Term and Termination. The term of this Agreement starts on the Effective Date stated below and ends one year thereafter. This Agreement may be terminated immediately by SLS with or without cause by providing immediate oral notice to Purchaser followed by written notice. No reasons for termination need to be specified. Upon termination, SLS will have the right, but not the obligation, to audit and immediately repurchase Purchaser's remaining inventory in Excess Inventory at the original purchase price to Purchaser. SLS will arrange for and pay for shipment of repurchased Excess Inventory to SLS including costs for and risk of loss or damage during shipment.
4. Taxes. Purchaser shall pay all taxes, tariffs, duties and expenses that result from any sales transactions occurring under this Agreement.
5. Title and risk of loss. Title and risk of loss will pass to Purchaser at the location designated by SLS. Purchaser shall at its own expense arrange for shipping and transportation and any further sale of all Excess Inventory, including, without limitation, payment of all transportation and related costs, shipping document preparation, proper packaging and labeling, and compliance with all laws, rules and regulations, including, without limitation, those relating to export of goods. Purchaser shall remove and destroy any written warranties packaged with the Excess Inventory prior to any resale. Purchaser must give any claim for shortage of Excess Inventory shipped no more than 30 days after the date of shipment. SLS will have no responsibilities or liability for any such claims received after such 30 day period.
6. Sale of Excess Inventory. Purchaser may sell Excess Inventory to unrelated third parties, if Purchaser has first complied with Sections 1, 2, 4, 5 and 8 of this Agreement. Purchaser shall not sell in North America any non-demarked proprietary brand Excess Inventory and any other Excess Inventory similarly restricted by SLS. Purchaser shall provide SLS the customs declaration, port of departure, and port of arrival information for any overseas sales on request.
7. Non-exclusive. Purchaser acknowledges and agrees that any purchase of Salvaged Goods is on a nonexclusive basis and subject to availability. Purchaser acknowledges that SLS is not required to sell any minimum quantities of Excess Inventory to Purchaser and Purchaser is not required to purchase any minimum quantities of Excess Inventory from SLS. Nothing in the Agreement creates any obligation or liability upon SLS to offer any particular kinds, quantities, or quality of merchandise for sale to Purchaser. Consideration for this Agreement is in SLS’s promise to offer to sell at least $100 worth of Excess Inventory to Purchaser, and Purchaser’s promise to offer to purchase at least $100 worth of Excess Inventory from SLS.
8. Defacing. Purchaser agrees to remove and obliterate any and all brands, trademarks, trade names, nomenclature, plates, identification tags, sales tickets, model numbers, item numbers, SKUs, documents, labels, legends, stencil information, manuals, instructions, price tags, or any other materials or information on the packaging, inside the packaging or on Excess Inventory which in any way identify Sears or Kmart, or any affiliated or related company of Sears or Kmart, or any licensed name (e.g., Jaclyn Smith, Structure, or Joe Boxer) with the Excess Inventory, including, but not limited to, those marks identified on the attached Exhibit A. Purchaser may not use Sears’ name or Marks, directly or indirectly, in any signs, advertisement, apparel, trucks, trailers, equipment, or other printed material in connection with such sale. Purchaser agrees
that its breach of this Section 8 would cause irreparable harm to SLS and Sears and that money damages would be inadequate to compensate its loss. Purchaser agrees that SLS is entitled to injunctive relief from any such breach.
9. Penalty. If Purchaser is found to have sold or conveyed Excess Inventory without complying with Section 8, SLS will be entitled to recover from Purchaser liquidated damages in an amount up to $10,000.00 for each occurrence, reflecting the damage to the trademarks of SLS’s affiliates, and the difficulty and burden in proving and calculating damages that result from such a violation.
8. Indemnity. Purchaser shall indemnify, hold harmless and defend SLS, Sears and Kmart and any affiliated or related company and their respective present, former and future shareholders, employees, officers and directors, and any party for (a) any liability, loss or damage whatsoever, including attorney's fees, expenses and court costs, resulting from any claims, suits (fine, settlement, penalty and expense) actions, or charges against SLS, Sears and Kmart, and any affiliated or related company as a result of or in connection with either the purchase, use, or resale of the Excess Inventory; (b) product liability claims based on sale, purchase, or use of Excess Inventory; (c) any breach of this Agreement by Purchaser, and (d) any breach of a third party sales agreement by Purchaser or the third party. Purchaser shall procure and maintain all insurance as is needed to cover Purchaser's liability under this Agreement and to comply with applicable laws.
9. Publicity. Purchaser shall not advertise the Excess Inventory using any private label name, trademark, or logo of Sears or Kmart, and nothing in this Agreement will be construed as granting any right or license to Purchaser.
10. Breach. If Purchaser violates these terms and conditions, SLS will be entitled to: (a) seek both legal and equitable relief, (b) recover all reasonable attorneys' fees, costs and expenses, and (c) bar Purchaser from further transactions with SLS, its affiliates, and its 3rd party liquidation contractors.
a. Purchaser shall maintain in strict confidence and not disclose to any third parties, any information relating to the price and other terms related to the purchase of Excess Inventory.
b. This Agreement and all sales made under this Agreement are governed by Illinois law, without regard to conflict of law or other legal principles (of Illinois or any other jurisdiction) that would apply the laws of any jurisdiction other than Illinois. Purchaser may not assign this agreement without the express, written permission of SLS, and any attempted assignment in violation of this provision is void.
c. SLS, Sears or Kmart will not be liable for any delay in or the impairment of performance resulting in whole or in part Acts of God, labor disruptions, shortages, inability to produce product, supplies of raw materials, weather conditions, war or any other circumstances or causes beyond the control of SLS, Sears or Kmart.
d. The parties agree that this is an arms-length Agreement, and that its terms are to be construed with equal bearing on each party.
This Agreement is effective February 12, 2016 ("Effective Date") and supersedes all previous letters, understandings, and written or oral agreements between the parties that relate to SLS’s sale or disposition of Excess Inventory.
The Sears Site is not targeted towards, nor intended for use by, anyone under the age of 18. By using the Sears Site, you represent and warrant that you are 18 years of age or older. If you are not at least 18 years of age, do not access, use, register or purchase merchandise on the Sears Site. In the event we become aware you are under 18, we will terminate your registration. Some merchandise offered for sale on the Sears Site may be restricted for sale to persons of a certain age (depending on the state or jurisdiction of residence) and we will require you to submit or provide valid proof of your age before purchasing or receiving age-restricted merchandise.
Changes to the Sears Site
You agree and understand that the Sears Site, including any and all features available via the Sears Site and any User Content (as defined below), may be modified by us, in our sole discretion, at any time without prior notice. Unless expressly stated otherwise, any new features, new services, enhancements or modifications to the Sears Site implemented after your initial access to the Sears Site shall be subject to these Terms. We do not actively monitor, and undertake no obligation to monitor or modify, any reviews, information, content, data, text, links to third party websites, User profile information, sounds, photographs, graphics, video, messages or other materials uploaded or made available via the Sears Site by or on behalf of any User (all such items provided by or on behalf of Users, collectively, "User Content"). Nonetheless, we reserve the right to investigate and take appropriate action, including legal action, in our sole discretion, against anyone who violates these Terms, including without limitation, by removing any User Content posted in violation of these Terms, terminating the registration of such violators or blocking such violators' use of the Sears Site.
In order to access some features of the Sears Site, you may be required to register and to select a password and user name, which shall consist of an email address you provide ("User ID"). To register, use the registration form available by clicking the "register" link near the top of any page on the Sears Site. By registering, you will also be enrolled as a member in the Shop Your Way program and must agree to the Program Terms and Conditions for Membership in the Shop Your Way Program available here. If you register, you agree to provide us with accurate and complete registration information, and to inform us immediately of any updates or other changes to such information. For example, you may not: (i) enter, select or use a false name or an email address owned or controlled by another person with the intent to impersonate that person, or (ii) use as a User ID a name subject to any rights of a person other than yourself without appropriate authorization. Failure to comply with the terms of this paragraph shall constitute a material breach of these Terms, which may result in immediate termination of your account. In addition, we reserve the right to refuse registration of, or cancel, a User ID in our discretion.
You are responsible for maintaining the confidentiality of your password and you are fully responsible for all activities that occur under your User ID and password, whether or not you authorize such activities. Any User ID and password for your access to the Sears Site shall be for your personal, non-commercial use only. You agree to (a) immediately notify us of any unauthorized use of your User ID or password of which you become aware, and (b) ensure that you exit from your account at the end of each session.
Use of the Sears Site/License/Services
Sears grants you a limited license to make personal use of the Sears Site. This license grant does not include: (a) any resale or commercial use of the Sears Site or content therein; (b) the collection and use of any product listings or descriptions; (c) making derivative uses of the Sears Site and its contents; or (d) use of any data mining, robots, or similar data gathering and extraction methods on the Sears Site. Except as noted above, Users of the Sears Site are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or proprietary right of Sears or any third party.
You may not use, frame or utilize framing techniques to enclose any Sears trademark, logo, content or other proprietary information (including the images found at this Site, the content of any text or the layout/design of any page or form contained on a page) without Sears' express written consent. Further, you may not use any meta tags or any other "hidden text" utilizing a Sears name, trademark, or product name without Sears' express written consent.
Any unauthorized use of the Sears Site will terminate the permission or license granted by these Terms and may violate applicable law including copyright laws, trademark laws (including trade dress), and communications regulations and statutes. All violators will be prosecuted to the fullest extent of the law.
Permitted uses of the Sears Site include soliciting opinions, ideas and other input from Users; sharing ideas and opinions with other Users, searching the Sears Site for User Content (as defined herein) and business or product information, and purchasing goods or services from the Sears Site for personal use, not for resale. You may also invite people you know to join the Sears Site. You acknowledge and agree that we do not control the User Content posted to the Sears Site, or any links to other websites, including the content of any messages posted by Users, and that we do not guarantee the accuracy, integrity or quality of any User Content. You further understand and agree that (i) we do not necessarily endorse, support, sanction, encourage, verify, or agree with the comments, opinions, or statements or other User Content posted on or otherwise displayed on or transmitted via the Sears Site, or (ii) we do not make any promises, guarantees or warranties with respect to any of the User Content or products, services, information, content or materials featured or mentioned on the Sears Site. All User Content, including advice and opinions posted by Users, comprises the views and responsibility of those who post such User Content, and does not necessarily represent the views of Sears. You understand that, by using the Sears Site, you may be exposed to User Content that is offensive, indecent or objectionable.
IN NO EVENT WILL WE BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE OR LOSS OF ANY NATURE WHATSOEVER ARISING FROM OR RELATING TO ANY USE, CONTINUED USE OR RELIANCE ON ANY USER CONTENT, ANY ERROR OR OMISSION IN ANY USER CONTENT, ANY CLAIM THAT ANY USER CONTENT IS DEFAMATORY, LIBELOUS OR VIOLATES ANY RIGHT OF ANY THIRD PARTY, OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY. YOU EXPRESSLY AGREE THAT YOU BEAR ANY AND ALL RISKS ASSOCIATED WITH YOUR ACCESS TO, CONTRIBUTION TO, USE OF AND/OR RELIANCE ON USER CONTENT.
Restrictions on Rights to Use
Without limiting the generality of any other provisions of these Terms, you agree you shall not (and you agree not to allow any other individual or entity using your User ID to):
- download, modify, reproduce, adapt, translate, reverse engineer, create derivative works based upon, publicly display, sell, rent, license, or in any way commercially exploit any portion of the Sears Site, except and to the extent expressly permitted under these Terms;
- remove any copyright, trademark or other proprietary rights notice contained in or on the Sears Site;
- use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Sears Site;
- collect any information about other Users (including usernames and/or email addresses) for any purpose other than to solicit and/or share reviews with other Users;
- reformat or frame any portion of any Web pages that are part of the Sears Site;
- create user accounts by automated means or under false or fraudulent pretenses;
- create or transmit to other Users unsolicited electronic communications, such as "spam," or otherwise interfere with other Users' enjoyment of the Sears Site;
- submit to the Sears Site any content that falsely states or implies that such content is sponsored or endorsed by us;
- transmit or upload to the Sears Site any item containing or embodying any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of the Sears Site, any other Web site, or any computer or other device or system, or the enjoyment of the Sears Site by any User;
- use the Sears Site to violate the security of or gain unauthorized access to any computer or computer network or other device or system (including unauthorized attempts to discover passwords or security encryption codes);
- submit to the Sears Site any content that is unlawful or facilitates, constitutes, promotes or encourages illegal activity; or otherwise use the Sears Site to transfer or store illegal material, including any material deemed threatening or obscene;
- copy or store any User Content offered on the Sears Site other than for your personal, non-commercial use;
- take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large data or traffic load on the Sears Site or the IT infrastructure used to operate and make the Sears Site available;
- use the Sears Site and/ or any User Content, intentionally or unintentionally, to violate any applicable local, state, federal or international law; or
- collect or store personal data about other Users in connection with the prohibited activities described in this paragraph.
User Content Posted on the Sears Site
- Subject to the following restrictions, registered Users may post, upload or transmit User Content on the Sears Site. Without limiting the generality of any other provisions of these Terms, you agree:
- You may not post, upload or transmit any User Content that (i) infringes or otherwise violates any copyright, patent, trademark, trade secret, publicity or privacy right or other proprietary right of any party, or (ii) is proprietary to a third party, without such third party's prior written consent.
- You understand and agree that we do not monitor but reserve the right to review and delete any User Content, including User Content that, in our sole discretion, (i) violates these Terms, (ii) is offensive or illegal, or (iii) may harm, violate the rights of or threaten the safety of any User and/or any other individual or entity.
- You are solely responsible for any User Content you post, publish or display on the Sears Site or transmit to Users. We reserve the right, but undertake no obligation, to monitor disputes between you and any other User, or any other entity or individual, in connection with the Sears Site. You are solely responsible for the resolution of any disputes that arise between you and any other User or any other entity or individual.
- You will post only User Content you believe in good faith to be true and accurate, and you will not post to the Sears Site any User Content that is fals, inaccurate, misleading or fraudulent.
- If you are employed by Sears or if you have received or will receive any compensation or consideration from Sears, including but not limited to product samples and Shop Your Way points, directly or indirectly in exchange for any opinion, endorsement, review or critique that you post, upload or transmit on the Sears Site, you must clearly and conspicuously disclose the nature of your connection to Sears.
- By uploading User Content to the Sears Site, you represent and warrant that you have all rights and authority necessary to grant, and do hereby grant: (i) Sears, its Affiliates, our respective contractors, and our business partners, an irrevocable, perpetual, non-exclusive, royalty-free, fully sublicensable, fully paid up, worldwide license and right to use, copy, publicly perform, digitally perform, publicly display, and distribute such User Content and to prepare derivative works based on, or incorporate into other works, such User Content, with or without attribution; and (ii) subject to the restrictions set forth in these Terms, all Users an irrevocable, perpetual, non-exclusive, royalty-free license and right to use such User Content for each such User's personal, non-commercial use. You further represent and warrant that you did not work with parties in conjunction with your User Content who are: a) represented under contract (e.g., by a talent agent or manager) that would limit or impair our ability to display your User Content in any media form; b) subject to an acting or modeling contract that would make your/their appearance in the User Content a violation of any third-party rights; or c) under any other contractual relationship, including but not limited to guild and/or union memberships, that may prevent us from being able to use the User Content worldwide in all media in perpetuity on a royalty-free basis, without any payment or fee obligations. You hereby irrevocably waive and assign to us any and all so-called moral rights or "droit moral" you may have in or with respect to any User Content you post to the Sears Site.
- You understand that Sears may be working on the same or a similar idea or concept to any ideas, expression of ideas or other materials you submit within your User Content, or that Sears may already know of such an idea or concept from other sources, or that Sears may simply wish to develop this (or a similar idea) on its own or it may have taken/will take some other action.
- In return for your access to and use of the Sears Site, you acknowledge that you have read, understand and agree to the terms enumerated below with respect to any User Content you submit on the Sears Site:
- To the best of your knowledge, the User Content represents your own original work, you have all necessary rights to disclose the User Content to Sears and in doing so Sears' use of the User Content will not infringe upon any other individual's or entity's rights.
- You understand that disclosure of your User Content to Sears does not establish a confidential relationship or obligate Sears to treat the User Content (or any related materials) as secret or confidential.
- You understand that Sears has no obligation, either express or implied, to develop or use your User Content and that no compensation is due to you or anyone else for any inadvertent or intentional use of User Content, or other content derived from your User Content. You understand that Sears assumes no obligation with respect to any User Content. For your own protection, we assume that you will rely on whatever patent protection you may want to secure, or have already secured, in your idea. In the absence of a separate formal contact, your rights shall be limited to those existing under the patent laws of the United States.
- If your User Content is the subject of a pending or issued patent, you have disclosed or will disclose that fact to Sears.
- You understand that, except to the extent that these terms are superseded by a separate agreement in writing by you and Sears, you hereby irrevocably release and forever discharge Sears and its affiliates and subsidiaries from any and all actions, causes of actions, claims, damages, liabilities and demands, whether absolute or contingent and of any nature whatsoever, which you now have or hereafter can, shall or may have against Sears and its affiliates and subsidiaries or their respecting successors and assigns with respect to the User Content, including without limitation in respect of how Sears, directly or indirectly, uses the User Content, with the sole exception in respect of the foregoing release and discharge being your right to bring a claim of patent infringement.
- The following is a partial list of the kind of User Content that is illegal and/or is prohibited on or through the Sears Site. You may not post any User Content that:
- is patently offensive to Users, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- harasses or advocates harassment of another person or User;
- promotes illegal activities or conduct that is abusive;
- is threatening, obscene, defamatory or libelous;
- is pornographic or sexually explicit in nature; or
- seeks, or recommends providers of, material that exploits people under the age of 18 in a sexual or violent manner, or seeks or recommends providers that solicit personal information from anyone under 18.
Sears retains the right to remove any User Content from its websites that in Sears' sole discretion violates any of the restrictions or guidelines defined in these Terms.
If you believe any User Content or any other aspect of the Sears Site infringes your copyright, you should send written notice of copyright infringement to our designated copyright agent at the address given below. Your notice must meet the requirements of the Digital Millennium Copyright Act (as required under 17 U.S.C. 512) by providing the following information:
- A description of the copyrighted work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Sears Site;
- Your address, telephone number and email address;
- A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the owner of the copyright at issue or are authorized to act on the copyright owner's behalf; and
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright at issue.
Our designated copyright agent for notice of claims of copyright infringement on the Sears Site may be reached at the following address:
Sears Holdings Management Corporation
3333 Beverly Road
Hoffman Estates, IL 60179
Or by email: email@example.com
If you believe that your User Content that was removed (or to which access was disabled) pursuant to a Digital Millennium Copyright Act notice we received is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to law, to post and use the content in your User Content, you may send a counter-notice containing the following information to the Copyright Agent at the address listed above:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Cook County, Illinois, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Sears may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Sears' sole discretion.
As between you and us, the Sears Site, including all photographs, images, text, graphics, icons, audio clips, software and other aspects thereof (excluding User Content), all improvements or modifications thereof, all derivative works based thereon, and the collection, arrangement, and assembly of the Sears Site, including all copyrights, trademarks, and other intellectual property or proprietary rights in the foregoing, are owned by us or our licensors. As between you and us, subject to any licenses and rights expressly granted herein, any User Content posted by you is owned by you. Nothing contained in these Terms shall be deemed to grant to you or any other User any rights, title or interest in or to any copyright, trademark or other proprietary right of ours or any of our licensors.
Any trademarks, service marks, and other marks and indicators of source or origin that are displayed on the Sears Site are the proprietary property of Sears or their respective owners, as applicable. None of such marks may be used in connection with any other product or service in a manner that is likely to cause confusion among consumers, or to disparage or discredit the owner of such mark or its affiliates. Any trademarks of third parties that appear on the Sears Site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us. You may not use, copy, modify or display any of the trademarks, service marks, names or logos appearing on the Sears Site without the express written permission of the trademark owner.
Nothing in these Terms shall be deemed to grant to you or any other User any license or right in or to any patent, copyright, trademark, trade secret or other proprietary right of Sears.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SEARS SITE, AND OF ANY USER CONTENT, INFORMATION, ADVICE, SERVICES, PRODUCTS, AND OTHER MATERIALS CONTAINED IN OR DESCRIBED ON THE SEARS SITE, IS ENTIRELY AT YOUR OWN RISK, AND THAT ALL SUCH INFORMATION AND MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE AVAILABILITY, OPERATION AND/OR USE OF THE SEARS SITE, INCLUDING BUT NOT LIMITED TO ANY USER CONTENT PROVIDED VIA THE SEARS SITE, AND ALL OTHER CONTENT, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE SEARS SITE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, WE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION AND CONTENT ACCESSIBLE VIA THE SEARS SITE IS ACCURATE, COMPLETE OR CURRENT, AND WE ARE NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN OR FOR ANY ADVERSE CONSEQUENCES RESULTING FROM USE OF, INABILITY TO USE, OR RELIANCE ON ANY ASPECT OF THE SEARS SITE, INCLUDING BUT NOT LIMITED TO USER CONTENT AND ALL OTHER CONTENT, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE SEARS SITE. FURTHER, WE MAKE NO REPRESENTATIONS AND WARRANTIES THAT THE SEARS SITE OR THE USER CONTENT WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM US OR THE SEARS SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
Limitation on Liability
IN NO EVENT SHALL SEARS OR THEIR RESPECTIVE AFFILIATES, OR THE SHAREHOLDERS, DIRECTORS, OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF ANY OF THE FOREGOING, BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL OR REVENUE, BUSINESS INTERRUPTION, OR LOSS OF DATA) ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, UNAVAILABILITY OF, INABILITY TO USE, OR IMPROPER USE OF THE SEARS SITE, INCLUDING BUT NOT LIMITED TO ANY USER CONTENT, REVIEWS, ADVICE, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE SEARS SITE, OR THE DISCLOSURE OR MISUSE OF ANY USER'S PERSONAL INFORMATION, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE. IN ANY EVENT, SEARS' RESPECTIVE TOTAL MAXIMUM LIABILITY IN RESPECT OF THE SEARS SITE OR ANY PART THEREOF, INCLUDING BUT NOT LIMITED TO THE USER CONTENT, REVIEWS, ADVICE, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE SEARS SITE, IN ANY MANNER WHATSOEVER, SHALL BE LIMITED TO ONE HUNDRED UNITED STATES DOLLARS ($100.00). THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
Third Party Advertisements and Links to Third Party Sites
We may display advertisements from third parties on the Sears Site, such as banner advertisements, pop-up texts, and links to third party sites. We are not responsible for the content of such advertisements or links, or for any products, services or other materials relating to such advertisements, any linked site, or any link contained in a linked site. The display of any advertisement or link does not imply endorsement by us of the advertisement or linked site or any content therein. IN NO EVENT WILL WE BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO ANY USE, CONTINUED USE OR RELIANCE ON ANY ADVERTISEMENT DISPLAYED ON THE SEARS SITE, ANY PRODUCTS, SERVICES OR OTHER MATERIALS RELATING TO ANY SUCH ADVERTISEMENT, ANY LINKED THIRD-PARTY SITE, OR ANY LINK CONTAINED IN A LINKED SITE.
Placing an Order
For details on how to place orders on the Sears Site, please click here. Sears currently ships to locations within the 50 United States via UPS, and APO/FPO addresses via USPS. Sears currently ships to some international locations via a third party partner. For details on international shipping, please see Sears International Shipping policy.
To see Sears' shipping and delivery policies in more detail, including product specific guidelines, please see the Sears Shipping & Delivery policy. Sears offers optional store pickup for items ordered online, according to the Ship to a Sears Store guidelines. Sears does not currently ship to Puerto Rico, Guam or the US Virgin Islands. Some oversized items requiring freight delivery cannot be shipped to Alaska or Hawaii. Sears gift cards are shipped via USPS within the continental United States, as well as Alaska, Hawaii and Puerto Rico. The risk of loss and title for all merchandise ordered on the Sears Site passes to you when the merchandise is delivered to the shipping carrier. You may purchase merchandise from the Sears Site by using any one of the options listed in “Payment Options” section of our How to Order page. Sears reserves the right to change its payment procedures at any time without prior notice to you.
Sears charges sales tax for merchandise ordered on the Sears Site based on the applicable state sales tax rate of the location to which the order is being shipped.
Some products offered through the Sears Site may be fulfilled by third-party sellers, such as Sears Marketplace items. Third-party/Marketplace sellers' shipping and delivery policies may differ from those offered by Sears. When ordering a product sold by a third-party or Marketplace seller, you should check their page for details on their shipping and delivery policies. Sears is an agent of third-party/Marketplace sellers for the sole and express purpose of receiving funds as payment for their merchandise sold on the Sears Site, and transmitting those funds to the third party/Marketplace seller. You agree that Sears' receipt of funds on behalf of a Marketplace seller is tantamount to receipt of the funds directly by the Marketplace seller, even if such funds are not subsequently remitted to the Marketplace seller for any reason; when you tender payment to Sears for third-party/Marketplace merchandise, you have fulfilled your obligation to purchase such merchandise.
You should contact third-party/Marketplace sellers directly via the contact information provided for any inquiries or customer service issues related to their merchandise, such as returns, or warranty issues. As payment agent, Sears will refund any money to you for returns of third-party/Marketplace merchandise via the payment method used to purchase the merchandise, after we receive notice from the third-party/Marketplace seller that you have returned merchandise to them in accordance with their return policy.
Sears reserves the right to refuse or cancel any orders placed for products and/or services which the sale or use of such product and/or service in your state or jurisdiction is restricted or prohibited.
To properly serve all customers, Sears reserves the right to limit quantities of orders to only one (1) of any such item(s) purchased. Sears further reserves the right to cancel multiple orders of any limited quantity item purchased by the same User and/or shipped to the same delivery address. Commercial use of the Sears site is expressly prohibited. Sears reserves the right to cancel any orders that it determines in its sole discretion are made for commercial resale purposes.
Sears may display advertising prints for products sold through a Sears Site. Sears attempts to display the colors of the products shown on the Sears Site as accurately as possible. However, we cannot guarantee that the color you see matches the product color, as the display color depends, in part, upon the monitor used by you.
Pricing errors may occur on the Sears Site from time to time, on items sold by Sears, or items sold by third party sellers on Sears Marketplace. Sears attempts to correct all pricing errors as soon as they are discovered, or as soon as Sears receives notice of an error. Sears reserves the right to cancel any orders containing pricing errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from Sears. Any payments you make to Sears for orders that are cancelled due to pricing errors will be refunded.
Returns and Cancellations
Orders you submit online may be cancelled until they are processed. Orders with a status of "Processing" may not be cancelled, and you must wait until your receive the merchandise in order to return it. Order status can be checked online by logging into your user account. All returns of merchandise are subject to the Sears Returns & Cancellations policy. Please click on the policy for more details. Products fulfilled by third party merchants, such as items sold by Sears Marketplace sellers, are subject to the third party merchant's individual returns and cancellations policies. If you are purchasing an item from a third party merchant, please see the third party merchant's page for details.
Changes to Terms
We reserve the right to make changes at any time to these Terms. Any modifications to these Terms will be effective upon posting. You agree to review the Terms periodically so that you are aware of any modifications. Your continued use of the Sears Site after any modifications indicates your acceptance of the modified Terms.
You agree that by entering into these Terms, you and Sears are each waiving the right to trial by jury and the ability to participate in a class action.
ALL DISPUTES BETWEEN YOU AND SEARS RELATING IN ANY WAY TO THE SEARS SITE (INCLUDING WITHOUT LIMITATION ORDERS MADE FROM THE SEARS SITE, SEARS’ ADVERTISEMENTS AND DISCLOSURES, EMAIL AND MOBILE SMS (TEXT) MESSAGES SEARS SENDS TO YOU, OR RELATING TO THE COLLECTION OR USE OF ANY INFORMATION ABOUT YOU IN CONNECTION WITH THE SEARS SITE), THESE TERMS, OR YOUR STATUS AS A USER WILL BE SUBMITTED TO CONFIDENTIAL ARBITRATION IN THE FEDERAL JUDICIAL DISTRICT IN WHICH YOU RESIDE, EXCEPT TO THE EXTENT THAT YOU HAVE, IN ANY WAY, VIOLATED OR THREATENED TO VIOLATE ANY COMPANY INTELLECTUAL PROPERTY RIGHT.
Any User who intends to seek arbitration must first send to Sears, by certified mail, a written Notice of Dispute ("Notice"). The Notice must be mailed to 3333 Beverly Road, Hoffman Estates, IL, Attn: Arbitration Intake and copied to Sears Holdings Corporation, 3333 Beverly Road, Hoffman Estates, IL 60179, Attn: General Counsel. The Notice shall describe the nature and basis of the claim or disputes and the specific relief sought. If we cannot reach an agreement to resolve the claim within thirty (30) days after the Notice is received, either party may commence arbitration.
All arbitrations required by these Terms will be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award is binding and may be entered in any court of competent jurisdiction. To the fullest extent permitted by applicable law no arbitration brought under, or with respect to, the Sears Site (including, without limitation, any Sears advertisement or disclosure, any email or mobile SMS (text) message that Sears sends to you, the collection or use of any information about you in connection with the Sears Site), these Terms or your status as a User is to be joined to an arbitration involving any other party subject to these Terms whether through class arbitration proceedings or otherwise. Unless Sears and you agree otherwise, the arbitrator may not consolidate more than one User’s claims, and may not otherwise preside over any form of a representative, private attorney general or class proceeding.
For arbitration claims you assert against Sears in accordance with this section (but not for any arbitration claim against you) Sears will pay all of your administrative, hearing, and arbitrator’s fees and costs for the arbitration (but not the fees, expenses, and costs of your lawyers, experts, or witnesses) in excess of any filing fee you would have been required to pay to file the claim as a lawsuit in a state or federal court (whichever is greater) in the judicial district in which you reside. Unless unlawful, Sears will pay its, and you will pay your, lawyers’, experts’, and witness fees, expenses, and costs with respect to all claims. The arbitrator may award money or equitable relief in favor of only the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. Similarly, an arbitration award and any judgment confirming it apply only to that specific case; it cannot be used in any other case except to enforce the award itself. To reduce the time and expense of the arbitration, the arbitrator will not provide a statement of reasons for his or her award unless requested to do so by all parties.
TO THE EXTENT PERMITTED BY LAW, YOU WILL NOT AGREE TO ACT AS A REPRESENTATIVE OR A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT AGAINST SEARS IN ANY COURT, OR IN ARBITRATION, WITH RESPECT TO ANY CLAIMS RELATING IN ANY WAY TO THE SEARS SITE (INCLUDING WITHOUT LIMITATION ORDERS MADE FROM THE SEARS SITE, SEARS’ ADVERTISEMENTS AND DISCLOSURES, EMAIL AND MOBILE SMS (TEXT) MESSAGES SEARS SENDS TO YOU, OR RELATING TO THE COLLECTION OR USE OF ANY INFORMATION ABOUT YOU IN CONNECTION WITH THE SEARS SITE), THESE TERMS, OR YOUR STATUS AS A USER. THIS SECTION (CONFIDENTIAL ARBITRATION) WILL SURVIVE THE TERMINATION OF THE RELATIONSHIP BETWEEN YOU AND SEARS.
Sears or you may seek injunctive relief in any state or federal court in Chicago, Illinois, USA, and Company and you consent to the exclusive jurisdiction and venue in the state and federal courts in Chicago, Illinois, USA for injunctive relief purposes.
By visiting the Sears Site, you agree that the laws of the State of Illinois, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and Sears.
Contact and Violations
Please contact us with any questions regarding these Terms. Please report any violations of the Terms to firstname.lastname@example.org.
One or more patents may apply to this Web site, including without limitation: U.S. Patent Nos. 5,761,649, 5,970,474, 6,330,592, 7,963,441, 8,015,068, 8,301,504, D619,603, D619,604, D619,605, D619,06, D620,021, and D644,649.