These terms are effective as of September 25, 2013.
Please note that the guidelines, policies and other terms and conditions of service and use of other Web sites affiliated with Kmart may vary from these Terms.
The Kmart Site is not targeted towards, nor intended for use by, anyone under the age of 18. By using the Kmart 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 Kmart Site. In the event we become aware you are under 18, we will terminate your registration. Some merchandise offered for sale on the Kmart Site may be restricted for sale to persons of a certain age (depending on their state or jurisdiction of residence) and will require you to submit or provide valid proof of your age before purchasing or receiving such age-restricted merchandise.
Changes to the Kmart Site
You agree and understand that the Kmart Site, including any and all features available via the Kmart 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 Kmart Site implemented after your initial access to the Kmart 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 Kmart Site by any User or on behalf of any User (all such items are collectively referred to as “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 Kmart Site.
In order to access some features of the Kmart Site, you may be required to register and submit an email address and select a password (“User ID”). 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) 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. By registering, you will also be enrolled as a member in the Shop Your Way Program, the terms and conditions of which are available here. 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 shall be 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 Kmart 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.
Secure Password Guidelines
As an additive security measure, Kmart recommends the following guidelines when establishing your online profile password:
Password should contain:
- At least 8 characters
- At least 1 uppercase letter (A-Z)
- At least 1 lowercase letter (a-z)
- At least 1 numeric value (0-9)
It is also a sound practice to differentiate passwords across multiple online accounts. Using the same credentials for multiple online accounts creates the potential for security breaches.
Use of the Site/License/Services
Kmart grants you a limited license to make personal use of the Kmart Site. This license grant does not include: (a) any resale or commercial use of the Kmart Site or content therein; (b) the collection and use of any product listings or descriptions; (c) making derivative uses of the Kmart Site and its contents; or (d) use of any data mining, robots, or similar data gathering and extraction methods on the Kmart Site. Except as noted above, Users of the Kmart Site are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or proprietary right of Kmart or any third party.
You may not use, frame or utilize framing techniques to enclose any Kmart 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 Kmart' express written consent. Further, you may not use any meta tags or any other "hidden text" utilizing a Kmart name, trademark, or product name without Kmart' express written consent.
Any unauthorized use of the Kmart 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.
You acknowledge and agree that we do not control the User Content posted to the Kmart Site, or any links to other websites, including the content of any messages, 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 Kmart 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 Kmart 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 our views. You understand that, by using the Kmart 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.
The Kmart Site does not provide medical advice. The content on the Kmart Site is for informational purposes only and not a substitute for medical advice. Consult your physician or other health provider for advice or questions about your medical condition. If you need immediate medical attention, contact your physician or local emergency medical professionals without delay. If you would like to speak with a pharmacist for non-medically urgent matters, please contact your local Kmart pharmacist.
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 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 Kmart 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 Kmart Site;
- use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Kmart 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 Kmart 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 Kmart Site;
- submit to the Kmart Site any content that falsely states or implies that such content is sponsored or endorsed by us;
- transmit or upload to the Kmart 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 Kmart Site, any other Web site, or any computer or other device or system, or the enjoyment of the Kmart Site by any User;
- use the Kmart 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 Kmart Site any content that is unlawful or facilitates, constitutes, promotes or encourages illegal activity; or otherwise use the Kmart Site to transfer or store illegal material, including any material deemed threatening or obscene;
- copy or store any User Content offered on the Kmart 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 load on the Kmart Site or the IT infrastructure used to operate and make the Kmart Site available;
- use the Kmart 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
- if you are employed by Kmart or if you have or will receive any compensation or consideration from Kmart, 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 to the Kmart Site, you must clearly and conspicuously disclose the nature of your connection to Kmart.
User Content Posted By You on the Kmart 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 prior written consent.
- You understand and agree that we do not monitor but reserve the right to review and delete any User Content for any or no reason, 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 Kmart 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 Kmart 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 Kmart Site any User Content that is false, inaccurate, misleading or fraudulent.
- By uploading User Content to the Kmart Site, you hereby grant, and represent and warrant that you have all rights and authority necessary to grant, (i) Kmart, and our respective contractors and 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 personal, non-commercial use. 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 Kmart Site. You understand that Kmart may be working on the same or a similar idea to any ideas, expression of ideas or other materials you submit within your User Content (“Idea”), that it may already know of such Idea from other sources, that it 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 Kmart Site, you acknowledge that you have read, understand and agree to the terms enumerated below with respect to any Ideas you submit on the Kmart Site. To the best of your knowledge, the Idea represents your own original work, you have all necessary rights to disclose the Idea to Kmart and in doing so and Kmart’s use of the Idea will not infringe upon any other individual's or entity's rights.
- You understand that disclosure of your Idea to Kmart does not establish a confidential relationship or obligate Kmart to treat the Idea (or any related materials) as secret or confidential.
- You understand that Kmart has no obligation, either express or implied, to develop or use your Idea and that no compensation is due to you or anyone else for any inadvertent or intentional use of that Idea, related Ideas or Ideas derived from your Idea. You understand that Kmart assumes no obligation with respect to any Idea.
- 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 Idea is the subject of a pending or issued patent, you have disclosed or will disclose that fact to Kmart.
- You understand that, except to the extent that these terms are superseded by a separate agreement in writing by you and Kmart, you hereby irrevocably release and forever discharge Kmart 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 Kmart and its affiliates and subsidiaries or their respecting successors and assigns with respect to the Idea, including without limitation in respect of how Kmart and its affiliates and subsidiaries, directly or indirectly, use the Idea, 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 Kmart Site. You may not post any content that:
- is patently offensive to users of the Kmart Site, 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;
- 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.
If you believe any User Content or any other aspect of the Kmart 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 Kmart 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;
- 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 Kmart 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) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your User Content, you may send a counter-notice containing the following information to the Copyright Agent:
- 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 Chicago, IL, 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, Kmart 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 Kmart's sole discretion.
As between you and us, the Kmart 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 Kmart 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 Kmart Site are the proprietary property of Kmart or their respective owners, as applicable. None of such marks may be used in connection with any other product or service, in any 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 Kmart 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 Kmart 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 ours.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE KMART SITE, AND OF ANY USER CONTENT, INFORMATION, ADVICE, SERVICES, PRODUCTS, AND OTHER MATERIALS CONTAINED IN OR DESCRIBED ON THE KMART 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 KMART SITE, INCLUDING BUT NOT LIMITED TO ANY USER CONTENT PROVIDED VIA THE KMART SITE, AND ALL OTHER CONTENT, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE KMART 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 KMART 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 KMART 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 KMART SITE. FURTHER, WE MAKE NO REPRESENTATIONS AND WARRANTIES THAT THE KMART 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 KMART SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
Kmart reserves the right to refuse or cancel any orders placed for products and/or services which the sale or use of such products and/or services in your State is restricted or prohibited. In the event of a pricing error on Kmart.com, Kmart reserves the right to cancel any orders resulting from such pricing errors.
To properly serve all customers, Kmart reserves the right to limit quantities. In this case, only one (1) of this limited quantity item may be placed in your shopping cart. Kmart further reserves the right to cancel multiple orders of the limited quantity item purchased by the same Kmart.com User and/or shipped to the same delivery address.
Kmart may display advertising prints for products sold through the Kmart Site. Kmart attempts to display the colors of the products shown on the Kmart 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 computer monitor used by you.
Limitation on Liability
IN NO EVENT SHALL KMART OR OUR 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 KMART SITE, INCLUDING BUT NOT LIMITED TO ANY USER CONTENT, REVIEWS, ADVICE, SERVICES, PRODUCTS, AND OTHER INFORMATION AND MATERIALS CONTAINED IN OR DESCRIBED ON THE KMART 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, KMART'S RESPECTIVE TOTAL MAXIMUM LIABILITY IN RESPECT OF THE KMART 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 KMART 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.
You agree to indemnify and hold Kmart and our respective affiliates, licensors, directors, officers, members, managers, employees, agents, and representatives, harmless from and against any losses, costs, expenses or damages of any nature whatsoever (including attorneys' fees and court costs) arising from any claim, cause of action, suit or demand of any third party due to, arising out of or related to (i) your access to the Kmart Site, (ii) your use of the Kmart Site, (iii) any User Content posted, uploaded or transmitted by you, (iv) your use or distribution of any User Content, (v) your violation of these Terms, (vi) any use of your User ID or password by you or any third party, or (vii) the infringement or other violation by you, or any third party using your account or User ID or password, of any intellectual property or other right of any person or entity.
Third Party Advertisements and Links to Third Party Sites
WE MAY DISPLAY ON THE KMART SITE ADVERTISEMENTS FROM THIRD PARTIES, SUCH AS BANNER ADVERTISEMENTS AND POP-UP TEXTS, AND LINKS TO THIRD PARTY SITES. WE ARE NOT RESPONSIBLE FOR THE CONTENT OF SUCH ADVERTISEMENTS OR LINKS, 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 KMART 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
At this time, Kmart ships merchandise only to locations within the 50 United States. Kmart does not ship merchandise to Puerto Rico, Guam, the US Virgin Islands or any international locations.
Kmart ships gift cards to locations within the United States, including Alaska, Hawaii and Puerto Rico. The risk of loss and title for all merchandise ordered on this Website pass to you when the merchandise is delivered to the shipping carrier. To see Kmart shipping and delivery policies in more detail, please see Shipping & Delivery. You may purchase merchandise from this Website by using any one of the payment options listed in See our Payment Methods. Kmart reserves the right to change its payment options at any time without prior notice to you
Kmart charges sales tax for merchandise ordered on this Website based on the applicable state sales tax rate and the location to which the order is being shipped.
Once your order is submitted to us, we cannot change or cancel an order until your merchandise is received by you. All returns of merchandise are subject to Kmart return policy, available under Returns/Cancellations.
Kmart 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, Kmart reserves the right to limit quantities of orders to only one (1) of any such item(s) purchased. Kmart 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 Kmart site is expressly prohibited. Kmart reserves the right to cancel any orders that it determines in its sole discretion are made for commercial resale purposes.
Kmart may display advertising prints for products sold through a Kmart Site. Kmart attempts to display the colors of the products shown on the Kmart 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 Kmart Site from time to time, on items sold by Kmart, or items sold by third party sellers. Kmart attempts to correct all pricing errors as soon as they are discovered, or as soon as Kmart receives notice of an error. Kmart 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 Kmart. Any payments you make to Kmart for orders that are cancelled due to pricing errors will be refunded.
You agree that by entering into these Terms, you and Kmart are each waiving the right to trial by jury and the ability to participate in a class action.
ALL DISPUTES BETWEEN YOU AND KMART RELATING IN ANY WAY TO THE KMART SITE (INCLUDING WITHOUT LIMITATION ORDERS MADE FROM THE KMART SITE, KMART ADVERTISEMENTS AND DISCLOSURES, EMAIL AND MOBILE SMS (TEXT) MESSAGES KMART SENDS TO YOU, OR RELATING TO THE COLLECTION OR USE OF ANY INFORMATION ABOUT YOU IN CONNECTION WITH THE KMART 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 Kmart, 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 Management 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 Kmart Site (including, without limitation, any Kmart advertisement or disclosure, any email or mobile SMS (text) message that Kmart sends to you, the collection or use of any information about you in connection with the Kmart 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 Kmart 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 Kmart in accordance with this section (but not for any arbitration claim against you) Kmart 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, Kmart 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 KMART IN ANY COURT, OR IN ARBITRATION, WITH RESPECT TO ANY CLAIMS RELATING IN ANY WAY TO THE KMART SITE, KMART’S ADVERTISEMENTS AND DISCLOSURES, EMAIL, AND MOBILE SMS (TEXT) MESSAGES KMART SENDS TO YOU, OR RELATING TO THE COLLECTION OR USE OF ANY INFORMATION ABOUT YOU IN CONNECTION WITH THE KMART SITE), THESE TERMS, OR YOUR STATUS AS A USER. THIS SECTION (CONFIDENTIAL ARBITRATION) WILL SURVIVE THE TERMINATION OF THE RELATIONSHIP BETWEEN YOU AND KMART.
Kmart 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 Kmart 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 Kmart Site.
Contact and Violations
Please contact us with any questions, or report any violations of these Terms. You can find contact information for Kmart here: Kmart Contacts
For claims or requests for arbitration, see the Confidential Arbitration section of these Terms.
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, D619,606, D619,607 and D620,021.