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THESE TOS CONTAIN AN ARBITRATION
PROVISION AND CLASS ACTION WAIVER WHICH LIMIT YOUR RIGHT TO HAVE A DISPUTE
HEARD IN COURT. PLEASE READ THESE TOS AND THE ARBITRATION PROVISION AND CLASS
ACTION WAIVER CAREFULLY.
Welcome to Hawk Tools Hawk Tools,
Inc. (together with Our affiliates, “Hawk Tools”, “We”, “Us”,
or “Our”) provides access to a marketplace for sales of luxury resale
items and art online and via brick and mortar locations. These Terms of Service
(these “TOS”) govern Your access to and use as an end user (“User”,
“You” or “Your”) of Our website (available at hawktoolsusa.com) ,
any other websites that link to these TOS, and any associated features,
functionalities, user interfaces, downloads, mobile applications, Content (as
defined below) and other online services that We operate or control
(collectively, the “Service”).
BY CREATING AN ACCOUNT, ACCESSING OR
USING THE SERVICE, OR OTHERWISE INDICATING YOUR ASSENT TO THESE TOS, YOU
ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND AGREE TO BE BOUND BY, THESE
TOS AND HAVE THE LEGAL AUTHORITY TO ENTER INTO THESE TOS (ON BEHALF OF YOURSELF
OR THE ENTITY YOU REPRESENT).
IF YOU DO NOT AGREE TO BE BOUND BY THESE TOS, OUR PRIVACY POLICY, AND ANY
ADDITIONAL TERMS THAT APPLY YOU MAY NOT USE OR ACCESS THE SERVICE IN ANY WAY.
These TOS incorporate Our Privacy
Policy (available at hawktoolsusa.com) (“Privacy Policy”). In addition,
consumer consignors (or sellers) are subject to the Consignment/Sales Agreement
governing consumer consignment or sale of items on the Service (available at hawktoolsusa.com)
and the sale of art is subject to the “Fine Art Conditions of Sale” set
out separately below (collectively, “Additional Terms”).
- ELIGIBILITY
In order to use the Service, You
must be 18 years or older. If You are under the age of 18, You are prohibited
from accessing or using the Service. You may not have more than one active
Account (defined below). Additionally, You are prohibited from selling,
trading, or otherwise transferring Your Account to another party. If You do not
meet the foregoing eligibility requirements, You may not use the Service. You
are not permitted to access the Service if Your Account has been suspended or
removed by Us for any reason.
- PRIVACY
By accessing or using the Service,
You acknowledge and accept Our Privacy Policy (available at hawktoolsusa.com),
which discloses how We collect, use, and share information about You.
- CONTENT LICENSE; OWNERSHIP
(a) License
The Service contains a variety of:
(a) materials and other items relating to Us and Our products and services, and
similar items from Our licensors and other third parties, including digital
content, products, services, and materials that may be developed or otherwise
made available from time to time for You to view, purchase, or download, all
layout, information, articles, reports, posts, text, data, files, images,
scripts, designs, graphics, descriptions, button icons, instructions,
illustrations, photographs, audio clips, music, sounds, pictures, videos,
advertising copy, URLs, technology, software, interactive features, the “look
and feel” of the Service, and the compilation, assembly, and arrangement of the
materials of the Service and any and all copyrightable material; (b)
trademarks, logos, trade names, trade dress, service marks, and trade
identities of various parties, including Us (collectively, “Marks”); and
(c) other forms of intellectual property (all of the foregoing, collectively, “Content”).
(b) Limited License
Content is licensed, not sold, to
You by Us. Subject to Your strict compliance with these TOS and any Additional
Terms, We hereby grant to You a limited, non-exclusive, revocable,
non-assignable, non-sublicensable, personal, non-transferable license to view,
download (in temporary storage only), and display the Content (excluding source
and object code in raw form or otherwise, other than as made available to
access and use to enable display and functionality) on supported devices for
Your personal use or internal business purposes solely through the Service (the
“Limited License”). The Limited License will remain in effect until and unless
We or You terminate the license.
(c) Ownership
All right, title, and interest in
and to the Service is Our property or Our licensors or certain third parties’
property, all of which is protected by U.S. and international intellectual
property laws. Except as explicitly stated in these TOS, We, Our licensors and
such other third parties reserve all rights in and to the Service.
- YOUR ACCOUNT
(a) Account Security
In order to access the Service, You
may need to sign-up or otherwise create an account with the Service (an “Account”),
for yourself or on behalf of a company, organization, entity, or brand (a “Company”)
or use Your or Your Company’s credentials (e.g., username and password) if
provided from a third-party social media or other platform (e.g., Google,
Facebook, etc.). You represent, warrant and covenant that all information You
provide in connection with creating, accessing and using Your Account is
accurate, current and complete. You will promptly update such information if it
changes at any point. If You provide any information that is or becomes (or if
We have reasonable grounds to suspect that such information is) false,
inaccurate, outdated or incomplete, or violates these TOS, the Privacy Policy,
Additional Terms, or any applicable law, We may suspend or terminate Your
Account and refuse any and all current or future use of the Service (or any
portion thereof). You are solely responsible for maintaining the
confidentiality of Your Account credentials. You accept sole responsibility for
all activities that occur under Your Account, username or password– whether or
not You authorized the activity – and You will not sell, transfer, or assign
Your Account or any Account rights to any third party. Because of this, We
strongly recommend that You exit from Your Account at the end of each session.
You must notify Us immediately of any unauthorized use of Your Account or any
other breach of security. We will not be liable for any loss or damage (of any
kind and under any legal theory) to You or any third party arising from Your
inability or failure for any reason to comply with Your responsibilities in
this Section.
(b) Account Authorization
If You register an Account on behalf
of a Company, the terms “You” and “Your,” as used throughout these TOS apply to
both You and the Company. You represent and warrant that You are authorized to
grant all permissions and licenses provided in these TOS (and any Additional
Terms) and to bind the Company to these TOS (and any Additional Terms).
(c) Account Preferences
We may offer You the ability to set
preferences relating to Your Account or Service activities, but settings may
not become effective immediately or be error free, and options may change from
time to time.
- USER-SUBMITTED POSTINGS
(a) General
The Service may provide You with the
ability to create, post, upload, display, publish, transmit, broadcast, share,
or otherwise make available content, including messages, text, illustrations,
files, images, graphics, photographs, ratings, reviews, questions, products,
listings, descriptions and images of goods or services, resources or other
information or materials (together, “Postings”). We are under no
obligation to screen, edit or monitor any Postings and assume no responsibility
or liability relating to any such Postings. However, We may delete or remove
Postings, with or without notice, at any time and for any reason.
(b) Restrictions
You acknowledge that You are
responsible for any Postings You may submit through the Service, including the
legality, reliability, appropriateness, originality and copyright of any such
Postings. Each time You submit a Posting, You represent and warrant that You
are not submitting any Posting that:
- is confidential, proprietary, invasive of privacy or
publicity rights, infringing on intellectual property rights, misleading,
non-compliant advertising, unlawful, harmful, threatening, false,
fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive,
harassing, hateful, racially, ethnically or otherwise objectionable,
including, but not limited to any content that encourages conduct that
would constitute a criminal offense, violates the rights of any party or
otherwise gives rise to civil liability or otherwise violates any
applicable U.S. or foreign laws;
- may contain software viruses or malware, corrupted data
or other harmful, disruptive or destructive files or content;
- contains or depicts any statements, remarks or claims
that do not reflect Your honest views and experiences or is designed to
impersonate others or misrepresent Your affiliation with any person or
entity;
- contains personal information (such as messages that
include phone numbers, Social Security numbers, payment card numbers,
account numbers, addresses or employer references), except where We
expressly ask You to provide such information or contains private or
personal information of a third party without such third party’s consent;
- contains messages by any of Our employees (that are not
official spokespersons for Us) purporting to speak on behalf of Us or
containing confidential information or expressing opinions concerning Us
or the Service;
- contains multiple messages placed within individual
folders by the same User restating the same point;
- contains chain letters of any kind, any unsolicited
promotions, political campaigning, advertising or solicitations or other
commercial content;
- in Our sole judgment, is objectionable or that
restricts or inhibits any other person from using or enjoying the Service,
or that may expose Us or others to any harm or liability of any type;
- contains identical (or substantially similar) messages
to multiple recipients advertising any product or service, expressing a
political or other similar message, or any other type of unsolicited
commercial message; this prohibition includes but is not limited to (i)
using the invitation functionality that may be available on the Service to
send messages to people who do not know You or who are unlikely to
recognize You as a known contact; (ii) using the Service to connect to
people who do not know You and then sending unsolicited promotional
messages to those direct connections without their permission; or (iii)
sending messages to distribution lists, newsgroup aliases or group aliases
- violates these TOS, the Privacy Policy or any
Additional Terms.
(c) Postings License
You hereby grant Us a perpetual,
irrevocable, worldwide, royalty-free, transferable, non-exclusive, unrestricted,
unconditional, royalty-free, fully-paid license to use, copy, reproduce,
distribute, publicly display, modify, adapt, publish, translate, sell, resell,
sublicense (through multiple tiers), create derivative works from, and
otherwise use and exploit all or any portion of Your Postings (and derivative
works thereof) for any lawful purpose. Except as prohibited by law, You hereby
waive, and You agree to waive, any moral rights (including attribution and
integrity) that You may have in any Postings, even if it is altered or changed
in a manner not agreeable to You. To the extent not waivable, You irrevocably
agree not to exercise such rights (if any) in a manner that interferes with any
exercise of the granted rights.
(d) Publicity License
To the extent necessary, when You
appear in or contribute Postings, You also grant Us the unrestricted,
worldwide, royalty-free, perpetual right and license to use Your name, image,
likeness, and voice. This means, among other things, that You will not be
entitled to any compensation from Us if Your name, image, likeness, or voice is
conveyed on or through the Service.
(e) Non-Confidentiality
When You submit Postings on or
through the Service, You understand that Your Postings and any associated
information (such as Your username or photos) may be visible to other Users.
Consequently, (a) Your Postings will be treated as non-confidential –
regardless of whether You mark them “confidential,” “proprietary,” or the like
– and will not be returned, and (b) We do not assume any obligation of any kind
to You or any third party with respect to Your Postings.
- PROHIBITED CONDUCT
You are solely responsible for Your
conduct while accessing or using the Service and in addition to the “Restrictions”
in Section 5(b) above as well as Our Hawk Tools Guidelines (available on
our website and which We may modify or amend from time to time).
You will not:
- sell, rent, lease, distribute, broadcast, publicly
perform, publicly display, sublicense, or otherwise assign any rights to
the Service or any portion of it to any third party;
- remove or modify any proprietary notices or labels on
the Service or otherwise make any derivative uses of the Service;
- cache, create unauthorized hypertext links to the
Service or frame any Content;
- use any data mining, robots, or similar data gathering
and extraction tools, or bypass or ignore instructions contained in Our
robots.txt file or equivalent restrictive technologies that control
automated access to portions of the Service;
- use Marks as metatags on other pages or sites on the
Internet;
- use or attempt to use another User’s Account without
authorization from that User and Us;
- use the Service in any manner that could interfere
with, disrupt, negatively affect or inhibit other Users from fully
enjoying the Service or that could damage, disable, overburden, or impair
the functioning of the Service or Our infrastructure (in Our sole
discretion) in any manner;
- reverse engineer any aspect of the Service or do
anything that might discover source code or bypass or circumvent measures
employed to prevent or limit access to any part of the Service;
- attempt to circumvent any content-filtering or access
restriction techniques We employ or attempt to access any feature or area
of the Service that You are not authorized to access;
- copy, download, redistribute, reproduce, “rip”, record,
transfer, display to the public, broadcast, or make available to the
public or another vendor or third party any part of the Service, or
otherwise make any use of the Service not expressly permitted under these
TOS, any Additional Terms, or applicable law, or which otherwise infringes
the intellectual property rights (such as copyright) in the Service or any
part of it;
- develop or use any third-party applications that
interact with the Service without Our prior written consent, including any
scripts designed to scrape or extract data from the Service; or
- violate any laws, regulations, governmental orders, or
industry standards or guidance in any applicable jurisdiction.
- AUTHENTICATION AND BRANDS
Our product authentication process
is independently conducted in-house by Our team. Brands identified on or
through the Service: (i) are not involved in the authentication of the products
being sold through the Service, and (ii) do not assume responsibility for any
products purchased from or through the Service. Brands sold on or through the
Service are not partners or affiliates of Us in any manner. However, We fully
cooperate with brands seeking to track down the source of counterfeit items,
which may include, when required by court order or directive of law
enforcement, revealing the contact information of consignors submitting
counterfeit goods. We may also, when required by court order or directive of
law enforcement, reveal to brands the contact information of consignors submitting
products that have been challenged as infringing, unapproved, suspicious,
potentially stolen, or offered for sale in an unauthorized geographic market.
More information on Our processes is available at hawktoolsusa.com/process
- DISCLAIMER OF WARRANTIES
YOUR ACCESS TO, AND USE OF THE
SERVICE IS AT YOUR SOLE RISK. EXCEPT FOR THE EXPRESS AUTHORSHIP WARRANTY
PROVIDED IN THE FINE ART CONDITIONS OF SALE, THE SERVICE IS PROVIDED TO YOU “AS
IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR
ACCURACY. WE DO NOT REPRESENT OR WARRANT THAT THE SERVICE IS ACCURATE,
COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, OR THAT THE QUALITY OF ANY PRODUCTS,
SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH
THE SERVICE WILL MEET YOUR EXPECTATIONS. WHILE WE ATTEMPT TO MAKE YOUR ACCESS
TO AND USE OF THE SERVICE SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT
THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
ALL THIRD-PARTY MATERIALS ARE
PROVIDED “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER. IT IS YOUR
RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY
OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SERVICE OR OBTAINED FROM
A LINKED SITE OR THIRD-PARTY MATERIALS. PLEASE SEEK THE ADVICE OF
PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC
OPINION, ADVICE, PRODUCT, SERVICE, OR OTHER CONTENT.
REFERENCE TO ANY PRODUCTS, SERVICES,
PROCESSES OR OTHER INFORMATION BY TRADE NAME, TRADEMARK, MANUFACTURER,
SUPPLIER, VENDOR OR OTHERWISE DOES NOT CONSTITUTE OR IMPLY ENDORSEMENT,
SPONSORSHIP OR RECOMMENDATION THEREOF, OR ANY AFFILIATION THEREWITH, BY US.
- LIMITATION OF LIABILITY
HAWK TOOLS PARTIES (AS DEFINED
BELOW) WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY, WHETHER
BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHERWISE,
AND WHETHER HAWK TOOLS PARTIES WERE ADVISED OF OR SHOULD HAVE KNOWN OF THE
POSSIBILITY OF SUCH LOSSES OR DAMAGES, FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT
LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER
INTANGIBLE LOSSES.
EXCEPT AS MAY BE PROVIDED IN ANY
ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
AGGREGATE LIABILITY OF HAWK TOOLS PARTIES, FOR ANY CLAIM ARISING OUT OF OR
RELATING TO THE TOS OR THE SERVICE, REGARDLESS OF THE FORM OF ACTION, IS
LIMITED TO THE GREATER OF (A) TWO THOUSAND US DOLLARS ($2,000.00), OR (B) THE
AMOUNT WE HAVE ACTUALLY RECEIVED AS A RESULT OF SELLING YOUR PROPERTY THROUGH
THE SERVICE IN THE TWELVE MONTHS PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
THE LIMITATIONS SET FORTH IN THIS
SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR: (i) DAMAGE ARISING FROM A
GROSSLY NEGLIGENT BREACH OF DUTY BY HAWK TOOLS OR FROM AN INTENTIONAL OR
GROSSLY NEGLIGENT BREACH OF DUTY BY A LEGAL REPRESENTATIVE OF HAWK TOOLS OR A
PERSON USED TO PERFORM AN OBLIGATION OF HAWK TOOLS; OR (ii) ANY OTHER MATTERS
IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW (OR FOR
ANY AUTHORSHIP WARRANTY CLAIMS UNDER THE FINE ART CONDITIONS OF SALE, BUT ONLY
TO THE EXTENT PROVIDED THEREIN). ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE
ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE
ADDITIONAL RIGHTS.
- INDEMNITY
To the fullest extent permitted by
applicable law, You will indemnify, defend (at Our option) and hold Us and Our
officers, directors, employees, agents, third-party providers, licensors,
partners and successors and assigns (individually and collectively, the “Hawk
Tools Parties”) harmless from and against any and all fines, penalties,
liabilities, losses, governmental inquiries, investigations, and proceedings
and other damages, costs and expenses of any kind whatsoever (including
reasonable attorneys’ and experts’ fees) incurred in connection with any
third-party claim, demand, cause of action, suit, investigation, arbitration,
or other proceeding (collectively, “Claims”) directly or indirectly
arising out of: (a) Your access to or use of the Service or any Third-Party
Materials; (b) Your actual or alleged breach of these TOS or any Additional
Terms; (c) Your Postings and Hawk Tools Parties’ use of any information that
You submit to Us; and/or (d) any fraud, misrepresentation, manipulation,
intentional misconduct, gross negligence or other violation of any applicable
laws in connection with Your use of the Service or Your activities in
connection with the Service. Hawk Tools Parties may take control of the defense
or settlement of any Claim and You will cooperate with Hawk Tools Parties in
defending such Claims. In any event, You will not settle any Claim without Our
prior written approval. For the avoidance of doubt, if You are a Company (or
representing a Company), Your obligations hereunder will extend to
indemnification based on the acts and omissions of Your employees, consultants
and agents.
If You are a Pennsylvania resident,
You expressly waive any rights You may have under Pennsylvania Civil Code
Section 1542 (or analogous laws of other states), which says: “A general
release does not extend to claims that the creditor or releasing party does not
know or suspect to exist in his or her favor at the time of executing the
release and that, if known by him or her, would have materially affected his or
her settlement with the debtor or released party.”
- FORCE MAJEURE
We will be excused from performance
under these TOS to the extent We are prevented from, or delayed from
performing, in whole or in part, as a result of an event or series of events
caused by or resulting from (a) weather conditions or other elements of nature
or acts of God, (b) acts of war, acts of terrorism, insurrection, riots, civil
disorders or rebellion, (c) quarantines, epidemics, pandemics, (d) embargoes or
labor strikes, or (e) other causes beyond Our reasonable control. In the event
that We are temporarily unable to ship to You a purchased item because of such
an event, We will give You the option of deferring shipment or receiving a
refund of Your charges if and as applicable in accordance with Our then-current
policies.
- DISPUTE RESOLUTION; MANDATORY BINDING ARBITRATION;
CLASS ACTION WAIVER PLEASE READ THIS SECTION CAREFULLY TO UNDERSTAND YOUR
RIGHTS BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS
WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
(a) Scope
For all matters, disputes, or claims
between You and Us arising from or related to this Agreement or Your
relationship with Us, whether based in contract, tort, statute, fraud,
misrepresentation or any other legal theory, including any dispute about the
interpretation or application of this dispute resolution provision or the
enforceability, revocability or validity of this arbitration provision or any
portion of the arbitration provision (“Disputes”), will be resolved by
the processes and procedures described in this Section, first amicably and then
through final and binding arbitration before a neutral arbitrator instead of in
a court by a judge or jury. EACH PARTY WAIVES ITS RIGHTS TO A JURY TRIAL AND
TO HAVE ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TOS OR THE SERVICE
RESOLVED IN COURT.
(b) Amicable Resolution
In the event of a Dispute, You will
negotiate in good faith with Us to informally resolve the Dispute. You may
notify Us of a Dispute by emailing Us at info@hawktoolsusa.com or by writing a
letter to Hawk Tools, Inc., Attn: Legal Department, 20 N Bailey Rd. Thorndale,
PA 19372. The notice must specifically describe the nature of the Dispute and
the relief You seek. The parties will have sixty (60) days from the date of
receipt of such a notice to try to resolve the Dispute (or such longer period
as the parties may agree in writing). If the Dispute is not resolved
satisfactorily within sixty (60) days after either party receives notice from
the other party in accordance with “Notices” at Section 21 below,
either You or We can submit the Dispute to binding arbitration in accordance
with the arbitration provisions below.
(c) Binding Arbitration
Except for any consumer controversy
or claim properly filed and pursued in small claims court on an individual
basis (as explained in “Small Claims Court Option” in Section 12(d)
below), any Dispute that remains unresolved after an attempt to resolve it
informally will be resolved by binding arbitration brought on an individual
basis, in which case either You or We may commence confidential binding
arbitration under the terms in this Section. The arbitration will be
administered by the American Arbitration Association (AAA) under the following
rules: (i) if You entered into these TOS individually, its Consumer Arbitration
Rules (available online at www.adr.org or by calling 1-800-778-7879), as
amended by these TOS, and (ii) if You entered into these TOS as a Company or as
a representative of a Company, by its Commercial Arbitration Rules. The place
of arbitration will be held exclusively in the County of San Francisco, Pennsylvania.
The arbitration will be conducted by a single arbitrator, selected by the AAA,
in accordance with the applicable Consumer Arbitration Rules or Commercial
Arbitration Rules. The arbitration may be held by teleconference or
videoconference unless the arbitrator determines upon request by You or by Us
that an in-person hearing is appropriate. Any in-person appearances will be held
at a location which is reasonably convenient to both parties with due
consideration of their ability to travel, the expense and other pertinent
circumstances. If the parties are unable to agree on a location, such
determination will be made by the arbitrator. The arbitrator’s decision(s) will
be final and binding. The arbitrator will have authority to award temporary,
interim or permanent injunctive relief or relief providing for specific
performance of these TOS, but only to the extent necessary to provide relief
warranted by the individual claim before the arbitrator. Any award of the
arbitrator may be entered as a judgment in any court having jurisdiction.
(d) Small Claims Court Option for
Consumer Individuals
If You entered into these TOS
individually, You have the choice to submit any Dispute before a small claims
court, if applicable, instead of having the Dispute resolved by arbitration.
You can make this choice either before or after the Dispute is submitted for
resolution by Arbitration.
(e) LITIGATION AND CLASS ACTION
WAIVER
BY ENTERING INTO THIS ARBITRATION
AGREEMENT, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY FOR ANY CLAIM SUBJECT TO
ARBITRATION. ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL
BASIS; CLASS ARBITRATIONS, PRIVATE ATTORNEY-GENERAL ACTIONS, CLASS ACTIONS, AND
ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY ARE NOT
PERMITTED, AND YOU ARE AGREEING TO GIVE UP AND WAIVE THE ABILITY TO PARTICIPATE
IN A CLASS ACTION. COMBINING INDIVIDUAL PROCEEDINGS WITHOUT THE CONSENT OF ALL
PARTIES IS ALSO NOT ALLOWED. DISPUTES REGARDING THE ENFORCEABILITY,
REVOCABILITY OR VALIDITY OF THE FOREGOING CLASS ACTION WAIVER WILL BE
EXCLUSIVELY RESOLVED BY AN ARBITRATOR APPOINTED BY THE AAA, PURSUANT TO THE
APPLICABLE ARBITRATION RULES, AS DETAILED IN THIS SECTION 12.
(f) Injunctive Relief
Notwithstanding any of the
foregoing, (i) You or We may seek and obtain temporary injunctive relief in any
court of competent jurisdiction, and seeking such measures will not be deemed
incompatible with the arbitration provision in this Section or a waiver of the
right to arbitrate; and (ii) if You are subject to a version of the TOS with Us
that contains a different arbitration provision, then the terms of such other
arbitration provision will govern disputes arising out of or related to the TOS
or any aspect of the relationship between You and Us, rather than the terms of
this Section 12.
(g) Severability
Should any portion of this Section
12 be deemed unenforceable by the arbitrator or a court of competent
jurisdiction, the unenforceable portion will be severed without affecting the
remainder of this Section 12, which will remain in full force and effect. If
the severance of any portion of Section 12 results in any claims proceeding on
a class or representative basis, those claims will be litigated in court and
not in arbitration; the parties agree to stay any litigation of those claims
pending the outcome of any individual claims in arbitration.
- GOVERNING LAW AND VENUE
These TOS (and any Additional Terms)
and Your access to and use of the Service will be governed by and construed and
enforced exclusively in accordance with the laws of the State of Pennsylvania,
without regard to conflict of law rules or principles (whether of Pennsylvania
or any other jurisdiction). Any dispute between You and Us that is not subject
to arbitration or cannot be heard in small claims court will be resolved
exclusively in the state or federal courts of Pennsylvania and the United
States, respectively, sitting in San Francisco County, Pennsylvania. The United
Nations Convention on Contracts for the International Sale of Goods will not in
any way apply to these TOS, the Service, or the listing, marketing, offer or
sale of property through the Service. For European Union (“EU”)-based
consumers this choice of law provision applies to the extent that no mandatory
consumer protection rules laid down in the EU or national EU member state laws
provide for greater consumer protection, in which case, such other laws will
apply.
- ELECTRONIC COMMUNICATIONS
(a) Express Consent
When You create an Account with Us
and provide Your email address and/or mobile phone number and/or when You
communicate with Us electronically, such as via email or through the Service, YOU
EXPRESSLY CONSENT TO RECEIVING COMMUNICATIONS ELECTRONICALLY AND/OR VIA TEXT
MESSAGE, CALLS, AND PUSH NOTIFICATIONS TO YOUR PHONE FROM US AND OUR AFFILIATES.
These communications may include notices about Your Account (e.g., payment
authorizations, password changes, unauthorized attempts to access your account,
and other transactional information), advertisements, and Your relationship
with Us.
You represent that You are the
Account holder for the mobile telephone number(s) that You provide. If You
change Your mobile telephone number(s), you will notify Us immediately by
updating Your number in My Account.
Any consents, authorizations,
agreements, notices, disclosures, or other communications that are provided to
You electronically and/or in these TOS satisfy any legal communication
requirements, including, but not limited to, that such communications be in
writing.
(b) Messages You May Receive From Us
And Opting Out
We and Our service providers may use
automated or manual means to deliver text messages to You if you have a U.S.
phone number. Text messages providing You information about orders, items You
are selling, or Your Account are sent through Our primary program (“Service
and Support”), while marketing reminders, cart reminders, selling tips, Hawk
Tools-sponsored events, promotions, product launches and marketing messages
related to Our goods and services are sent through a secondary program (“Marketing
Communications”).
You may opt out of these
communications at any time. Consent to receive marketing text messages and
other electronic communications is not required to purchase any goods or
services. To opt out of receiving text messages regarding your orders and items
you’re selling, you may reply to any text with the message “STOP,” or text
“STOP” to 47325 or 53659. To opt out of receiving marketing text message, you
may reply to such text messages with “STOP” or text STOP to 53659. You
may opt out of any or all text messages, calls, emails, push notifications,
and/or other electronic communications via My Account (available at
https://www.hawktoolsusa.com/account) or you may Contact Us (available at
https://www.hawktoolsusa.com/contactus). You may turn off our push notifications
in your phone or computer settings. If you do not have a mobile telephone
service rate plan with unlimited text messaging, text message and data rates
may apply to each text message you or we send or receive. Please contact Your
mobile telephone carrier regarding applicable charges including any applicable
roaming charges. We do not impose a separate fee for sending Our text messages.
- PAYMENT AND BILLING
We may make available the ability to
purchase or otherwise obtain certain products or services through the Service
(each, a “Transaction”). In order to make a Transaction, You may be
asked to supply certain relevant information, such as Your credit card number
and its expiration date (or other acceptable payment method that We make
available to You from time to time), Your billing address and Your shipping
information. In the event that the amount of a Transaction exceeds the total
credit or funds available for purchase in Your payment account, You may be
subject to overdraft or non-sufficient funds charges by the bank issuing Your
payment method. We are not responsible for these charges and are unable to
assist You in recovering them from Your issuing bank.
Payment processing services are
provided by Stripe and are subject to the Stripe Connected Account Agreement,
which includes the Stripe Terms of Service (collectively, the “Stripe Services
Agreement”). By agreeing to these terms or continuing to use the Services, You
agree to be bound by the Stripe Services Agreement, as the same may be modified
by Stripe from time to time. As a condition of Us enabling payment processing
services through Stripe, You agree to provide Us accurate and complete
information about You and your business, and you authorize Us to share it and
transaction information related to Your use of the payment processing services
provided by Stripe.
By providing a credit card or other
acceptable payment method, You represent and warrant that You are authorized to
use the designated payment method and that You authorize Us (or Our third-party
payment processor) to charge Your payment method for the total amount of Your
Transaction (including any applicable taxes and other charges). Verification of
information may be required prior to the acknowledgment or completion of any
Transaction. If the payment method cannot be verified, is invalid, or is
otherwise not acceptable, We will notify You of the issue, and if We are unable
to resolve the issue, Your order may be suspended or terminated. If You want to
change or update payment information associated with Your Account, You can do
so at any time by logging into Your Account and editing Your payment
information.
By making a Transaction, You represent
that the applicable products or services will be used only in a lawful manner.
- THIRD-PARTY MATERIALS AND LINKED SITES
The Service may display, include, or
make available Content, data, information, applications, plugins, products,
services, listings, descriptions and images of goods or services, resources or
materials from third parties or provide links to certain third-party websites
or applications (collectively, “Third-Party Materials”). Any activities
in which You engage in connection with any Third-Party Materials are subject to
the privacy and other policies, terms and conditions of use and/or sale, and
rules issued by the operator of such Third-Party Materials, Third-Party
Materials are provided solely as a convenience to You. You will not use any
Third-Party Materials in a manner that would infringe or violate the rights of
any other party.
- CHANGES TO THESE TOS
We reserve the right to make changes
to Our TOS and Additional Terms at any time. If We make a material modification
to these TOS or the Additional Terms, We will notify You by: (i) sending an
email to the address associated with Your Account (but note that We are not
responsible for Your failure to receive an email due to the actions of Your ISP
or any email filtering service); therefore, You should add Hawktoolsusa.com to
the list of domains approved to send You email (commonly known as Your
“whitelist”); or (ii) displaying a prominent announcement above the text of
these TOS or the Additional Terms, as appropriate, for thirty (30) days, with
(i) or (ii) being deemed sufficient notification to You of such changes. After
notice of a modification to the TOS or the Additional Terms has been posted for
30 days, the notice may be removed. If You choose to continue using the Service
after receipt of the notice under (i) above or after such thirty (30) day
period in (ii) above, You accept the new TOS and Additional Terms, as relevant.
Except for changes by Us as described here, no other amendment or modification
of these TOS will be effective unless in writing and signed by both You and Us.
If We make a change to Our Privacy
Policy, We will follow the process described in Our Privacy Policy.
If You have any questions or
comments about these TOS or the Service, please contact Us by email at
info@hawktoolsusa.com You also may write to Us at: Hawk Tools, Attn: Legal
Department, 20 N bailey Rd. Thorndale, Pa 19372
- PROCEDURE FOR CLAIMS OF COPYRIGHT INFRINGEMENT
(a) Copyright Notices
We respect the intellectual property
rights of others, and You must do the same when using the Service. We may, in
appropriate circumstances and at Our discretion, disable and/or terminate the
Accounts of Users who infringe or are believed to be infringing the
intellectual property rights of third parties. If You believe that a Posting or
Content on the Service infringes any copyright that You own or control, please
send a notice of alleged copyright infringement Your (a “Copyright Notice”)
to Our designated copyright agent (“Designated Agent”) with all of the
following information:
- a legend or subject line that says: “Copyright Notice”;
- an electronic or physical signature of the person
authorized to act on behalf of the owner of the copyright;
- a description of the copyrighted work that You claim
has been infringed or, if multiple copyrighted works are covered by a
single notification, a representative list of such works;
- a description of where the material that You claim is
infringing is located on the Service (please be as detailed as possible
and provide the URL on which the material appears);
- Your full name, 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; and
- a statement by You, made under penalty of perjury, that
the above information in Your Copyright Notice is accurate and that You
are the copyright owner or authorized to act on the copyright owner’s
behalf.
The Copyright Notice must be sent to
Our Designated Agent at via physical mail or email at the following
addresses:
Designated Agent: Legal Department, c/o Hawk Tools
Mailing Address: 20 N Bailey Rd. Thorndale, PA 19372
Email Address: info@hawktoolsusa.com
Please note that if You knowingly
misrepresent that any activity or material (including Content or Postings) on
the Service is infringing, You may be liable to Us for certain costs and
damages.
If We are notified by a copyright
holder that any Content or Posting infringes a copyright, We may in Our sole
discretion remove such Content or Posting from the Service, or take other steps
that We deem appropriate, without prior notification to the User or other party
who supplied or posted that Content or Posting. If such User or other party
believes that the Content or Posting is not infringing, that User may in
certain circumstances submit a counter-notification to Us with a request to
restore the removed Content or Posting, which We may or may not honor, in Our
sole discretion.
(b) Counter-Notifications
If access to Your Postings through
the Service is disabled or Your Posting is removed from the Service as a result
of a Copyright Notice, and You believe that the disabled access or removal is
the result of mistake or misidentification, then You may send a “Copyright
Counter-Notification” to Our Designated Agent (as listed in above). The
Copyright Counter-Notification must contain the following information:
- a legend or subject line that says: “Copyright
Counter-Notification”;
- a description of the material that has been removed or
to which access has been disabled and the location at which the material
appeared before it was removed or access to it was disabled (please
include the URL of the Service from which the material was removed or
access to it disabled);
- a statement under penalty of perjury that You have a
good faith belief that the material was removed or disabled as a result of
mistake or misidentification of the material to be removed or disabled;
- Your full name, address, telephone number, e-mail
address, and the username of Your Account;
- a statement that You consent to the jurisdiction of the
Federal District Court for the judicial district in which Your address is
located (or, if the address is located outside the U.S.A., to the
jurisdiction of the United States District Court for the Northern District
of Pennsylvania), and that You will accept service of process from the
person who provided copyright notification to Us or an agent of such
person; and
- Your electronic or physical signature.
Please note that if You knowingly
misrepresent that any activity or material (including any Postings) on the
Service was removed or disabled by mistake or misidentification, You may be
liable to Us for certain costs and damages.
- MODIFICATION OR TERMINATION OF SERVICE
We reserve the right, without notice
and in Our sole discretion, to modify, suspend or cease making the Service (or
any function, feature or portion thereof) or the Content (or any portion
thereof) available at any time, for any reason without any obligation or
liability to You. Likewise, We reserve the right, without notice and in Our
sole discretion, to suspend or terminate Your right to access or use the
Service (or any portion thereof) for engaging in behavior prohibited by our
Hawk Tools Guidelines (available on our website and which We may modify or
amend from time to time). We are not responsible for any loss or harm related
to Your inability to access or use the Service (or any portion thereof).
- NOTICES
All notices under this Agreement
must be in writing (which includes emails).
If You have any questions or comments
about the TOS or the Service or wish to terminate this Agreement, please
contact Us by email at: info@hawktoolsusa.com
You also may write Us at:
Hawk Tools, Inc.
Attn: Legal Department
20 N Bailey Rd. Thorndale, PA 19372
We will provide all notices to You
at the email address or physical address that You have provided to Us. You are
solely responsible for keeping that information current and accurate.
All agreements, notices, disclosures,
and other communications that We provide electronically to You satisfy any
legal requirement that such communications be in writing.
- MISCELLANEOUS
If any term of these TOS is found by
any court or arbitrator to be void or otherwise unenforceable, the remainder of
this Agreement will remain valid and enforceable as though such term were
absent upon the date of the execution of this Agreement. From time to time, We
may offer special promotional offers which may or may not apply to Your
Account. Headings are for reference purposes only and do not limit the scope or
extent of such section. Any failure by You or Us to enforce any provision of
these TOS will not constitute a waiver of such provision or of any other
provision of these TOS. Except as otherwise expressly provided in these TOS or
any Additional Terms, there will be no third-party beneficiaries to these TOS
or any Additional Terms. These TOS, Our Privacy Policy and any Additional Terms
constitute the entire agreement between You and Us and govern Your use of the
Service, superseding any prior agreements between You and Us with respect to
the Service. No joint venture, partnership, employment, or agency relationship
exists between You and Us as a result of these TOS or Your access to and use of
the Service. You are responsible for obtaining access to the Service, and that
access may involve third-party fees (such as Internet service provider or airtime
charges). In addition, You must provide and are responsible for all equipment
necessary to access the Service. Your rights and duties under these TOS (or any
Additional Terms) are not assignable by You without Our written consent and any
prohibited assignment is null and void. These TOS will inure to the benefit of,
and are intended to be enforceable by, the parties and their respective
successors and assigns. Any provision of these TOS that imposes or contemplates
continuing obligations on You or Us will survive the expiration or termination
of these TOS.
FINE ART CONDITIONS OF SALE
CONDITION REPORTS AND DESCRIPTIONS
OF PROPERTY
Our knowledge regarding each work of
art sold through the Service is partially dependent on information provided to
Us by the consignor or seller of such art, and We are not able to and do not
carry out exhaustive due diligence on each work of art. We will exercise
reasonable care when making express statements in Descriptions (defined below)
or condition reports as is consistent with Our role as vendor in this sale and
in light of (i) the information provided to Us by the consignor or seller, (ii)
scholarship and technical knowledge and (iii) the generally accepted opinions
of relevant experts, in each case at the time any such express statement is
made.
- AUTHORSHIP WARRANTY; DISCLAIMER
(a) We warrant for a period of five (5) years from the date of sale by
Us, subject to the exclusions and limitations set forth below, that any
art work sold on the Service if described in headings in bold type on the
Service to be of a named author, will be authentic and not a forgery (the
“Authorship Warranty”). This Authorship Warranty will not apply to works
of art whose: (i) description of authorship on the Service as of the sale
date corresponded with the generally accepted opinion of scholars or
experts or indicated that there was a conflict of opinions; or (ii)
authorship as described on the Service as of the sale date is proved
inaccurate by means of a scientific process not generally accepted for use
until after the sale date or a process which as of the sale date was
unreasonably expensive or impractical or likely to have caused damage to
the property.
(b) The benefits of the Authorship Warranty are not assignable and
will apply only to the original buyer of the work as shown on the order
confirmation originally issued by Us when the work was sold.
(c) In any claim for breach of the Authorship Warranty, We reserve
the right, as a condition to rescind any sale under this warranty, to
require You to provide to Us at Your expense the written opinions of two
recognized experts in the field, mutually acceptable to Us and You, before
We determine whether or not to cancel the sale or provide a refund under
the warranty. We will not be bound by any expert report produced by You
and reserve the right to consult Our own experts at Our expense.
(d) Subject to the exclusions set forth in subparagraph (a) above,
You may bring a claim for breach of the Authorship Warranty provided that:
(i) You have notified Us in writing within no less than three (3) months
of receiving any information which causes You to question the authorship
of the piece, specifying the sale in which the property was included, the
item number on the order confirmation and the reasons why the authorship
of the piece is being questioned; and (ii) You return the piece to Us in
the same condition as at the time of the sale and are able to transfer
good and marketable title in the piece free from any third party claim
arising after the date of the sale. We may waive any of the foregoing
requirements in Our sole discretion.
(e) Your sole and exclusive remedy, and our sole and exclusive
liability, for any breach of the Authorship Warranty will be rescission of
the sale and refund of the original purchase price paid to You. THIS
REMEDY WILL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY AND RECOURSE OF YOU
AGAINST HAWK TOOLS PARTIES AND THE SELLER AND IS IN LIEU OF ANY OTHER
REMEDY AVAILABLE AS A MATTER OF LAW OR EQUITY FOR ANY CLAIM RELATED TO THE
AUTHORSHIP WARRANTY. This means that none of Hawk Tools Parties or the
seller will be liable for loss or damage beyond the remedy expressly
provided in this Authorship Warranty, whether such loss or damage is
characterized as direct, indirect, special, incidental or consequential,
or for the payment of interest on the original purchase price.
(f) As a courtesy to You as a buyer, We may prepare and provide
condition reports on each work of art (“Descriptions”). ALL
REPRESENTATIONS OR STATEMENTS MADE BY US AS TO THE AUTHORSHIP, ORIGIN,
DATE, AGE, SIZE, MEDIUM, ATTRIBUTION, GENUINENESS, PROVENANCE, CONDITION
OR ESTIMATED SELLING PRICE OF ANY ARTWORK, ARE STATEMENTS OF OPINION ONLY.
ALL PHOTOGRAPHIC REPRESENTATIONS AND OTHER ILLUSTRATIONS PRESENTED ONLINE
OR ELSEWHERE ARE SOLELY FOR GUIDANCE AND ARE NOT TO BE RELIED UPON IN
TERMS OF TONE OR COLOR OR NECESSARILY TO REVEAL ANY IMPERFECTIONS IN THE
ARTWORK. MANY WORKS ARE OF AN AGE OR NATURE THAT PRECLUDES THEIR BEING IN
PRISTINE CONDITION AND SOME MAKE REFERENCE TO DAMAGE AND/OR RESTORATION.
SUCH INFORMATION IS GIVEN FOR GUIDANCE ONLY AND THE ABSENCE OF SUCH A
REFERENCE DOES NOT IMPLY THAT A WORK IS FREE FROM DEFECTS NOR DOES ANY
REFERENCE TO PARTICULAR DEFECTS IMPLY THE ABSENCE OF OTHERS.
(g) EXCEPT FOR THE AUTHORSHIP WARRANTY, NEITHER HAWK TOOLS PARTIES NOR
THE SELLER MAKE ANY REPRESENTATION, WARRANTY OR GUARANTEE OR ASSUME ANY
LIABILITY OF ANY KIND IN RESPECT OF ANY WORK OF ART OR ANY DESCRIPTIONS,
WHETHER EXPRESS OR IMPLIED, INCLUDE ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR PARTICULAR PURPOSE, DESCRIPTION, SIZE QUALITY, CONDITION,
ATTRIBUTION, AUTHENTICITY, RARITY, IMPORTANCE, MEDIUM, PROVENANCE,
EXHIBITION HISTORY, LITERATURE, NON-INFRINGEMENT OR HISTORICAL RELEVANCE.
EXCEPT AS REQUIRED BY LOCAL LAW, ANY WARRANTY OF ANY KIND WHATSOEVER IS
EXCLUDED BY THIS PARAGRAPH.
- SALES TAX
Purchases may be subject to sales,
use, excise and other tax in some jurisdictions. It is Your responsibility to
ascertain and pay all taxes due. If You are claiming exemption from sales tax,
You must have the appropriate documentation on file with Us prior to the
release of the property.
We display an “Estimated Tax” to be
collected at check out when confirming an order. The amounts displayed as
estimated tax may then be updated later when Your order is finalized and
completed.
- PACKING AND SHIPPING
You are responsible for all shipping
costs and fees. We will, at Your expense, either provide packing, handling,
insurance and shipping services or coordinate with shipping agents instructed
by You in order to facilitate such services for property purchased from Us. As
a courtesy to You, We will, without charge, wrap purchased items for hand carry
only. Any such instruction, whether or not made at Our recommendation, is
entirely at Your risk and responsibility and We will not be liable for acts or
omissions of third party packers or shippers. We will require presentation of
government issued identification prior to release of a piece to You or Your
authorized representative.
- GENERAL
These Fine Art Conditions of Sale
are subject at all times to (and incorporate by this reference) the TOS.
HISTORICAL MODIFICATIONS
POSTED JUNE 01, 2011; UPDATED
OCTOBER 27, 2013; UPDATED MARCH 29, 2018. THESE TOS WERE MODIFIED ON OCTOBER
27, 2013 TO REFLECT CHANGES THAT INCLUDE THE FOLLOWING: (I) CLARIFICATION THAT
THE TOS APPLY TO THE SERVICE AVAILABLE THROUGH THE SITE, (II) REMOVE
DUPLICATIVE AND OVERLAPPING PROVISIONS, (III) CLARIFY UNCLEAR PROVISIONS AND
CORRECT SCRIVENER’S ERRORS, (IV) UPDATES TO HAWK TOOLS’S CONTACT INFORMATION,
(V) REVISIONS TO YOUR OBLIGATIONS WITH RESPECT TO POSTINGS, (VI) ADDITION OF A
PROVISION REGARDING ASPECTS OF THE LIMITATION OF LIABILITY AND (VII) THE
JURISDICTION FOR DISPUTES. THESE TOS WERE MODIFIED ON MARCH 29, 2018 TO ADD A
MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER. THESE TOS WERE
MODIFIED ON OCTOBER 9, 2019 TO REFLECT THE SMS PROGRAM. THESE TOS WERE MODIFIED
NOVEMBER 10, 2020 TO PROVIDE CLARIFICATION ABOUT THE APPLICATION OF TAX ON
ORDERS.
