1. Kixify is a Venue
Kixify acts as a venue to allow users who comply with Kixify's policies to offer, sell and buy certain goods within a fixed-price format. Kixify is not directly involved in the transaction between buyers and sellers. As a result, Kixify has no control over the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. Kixify does not pre-screen users or the content or information provided by users. Kixify cannot ensure that a buyer or seller will actually complete a transaction. Consequently, Kixify does not transfer legal ownership of items from the seller to the buyer. Kixify cannot guarantee the true identity, age, and nationality of a user. Kixify encourages you to communicate directly with potential transaction partners through the tools available on the Site. You may also wish to consider using a third-party escrow service or services that provide additional user verification. You agree that Kixify is a venue. Kixify shall provide you with the “Kixify Service” or the “Service” which is a proprietary Internet-based Software as a Service (“SAAS”) system that facilitates the trade between sellers and buyers of product. And as such is not responsible or liable for any content, for example, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other users, or outside parties on Kixify. You use the Kixify service at your own risk.
2. Membership Eligibility
3. Fees and Billing
Joining and setting up a shop on Kixify is free. Kixify does not charge fees for listing an item for sale. We simply charge an 8% commission fee only when an item is sold. Changes to the Fees Policy and the fees for Kixify's services are effective after Kixify provides you with at least fourteen (14) days' notice by posting the changes on the Site. However, Kixify may choose to temporarily change the Fees Policy and the fees for Kixify's services for promotional events (for example, free listing days); such changes are effective when Kixify posts the temporary promotional event on the Site. Kixify may, at Kixify's sole discretion, change some or all of Kixify's services at any time. In the event Kixify introduces a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in US Dollars (USD). In certain situations, including but not limited to a void or invalid transaction, Kixify may issue a credit for the applicable fees to a seller's billing statement. You are responsible for paying all fees and applicable taxes associated with using Kixify. Kixify will send an invoice to the seller’s email address on file detailing the amount due for the prior month’s commissions. The seller must pay the amount due in full within 15 days of the date of the invoice, or the account will be considered past due. Fees and Termination: If Kixify terminates a listing or your account, if you close your account, or if the payment of your Kixify fees cannot be completed for any reason, you remain obligated to pay Kixify for all unpaid fees plus any penalties, if applicable. If the seller's account is not paid in full and becomes past due, the seller risks penalties such as the suspension of privileges and/or termination of the account and other collection mechanisms (including retaining collection agencies and legal counsel). If you have a question or wish to dispute a charge, contact Kixify.
4. Listing and Selling
Listing Description: By listing an item on the Site you warrant that you and all aspects of the item comply with Kixify's published policies. You also warrant that you may legally sell the item. You must accurately describe your item and all terms of sale in your Kixify shop. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All items must be listed in an appropriate category with appropriate tags. Each listing must accurately and completely describe the item/items for sale in that listing. If the "in stock" quantity is more than one, all items in that listing must be identical. Each unique item must have its own listing. Shop Policies: All sellers are urged to outline shop policies for their Kixify shop. These policies may include, for example, shipping, returns, payment and selling policies. Sellers must create reasonable policies in good faith and must abide by such policies. All shop policies must comply with Kixify's site-wide policies. Sellers are responsible for enforcing their own reasonable shop policies. Kixify reserves the right to request that a seller modify a shop policy. Binding Sale: All sales are binding. The seller is obligated to ship the order or otherwise complete the transaction with the buyer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of the seller's listing (such as payment method), or (b) the seller cannot authenticate the buyer's identity. The buyer is obligated to deliver appropriate payment for items purchased, unless there is an exceptional circumstance. Fee Avoidance: The price stated in each item listing description must be an accurate representation of the sale. Sellers may charge reasonable shipping and handling fees to cover the costs for packaging and mailing the items. Sellers may not charge excessive shipping fees or otherwise avoid fees. You may not alter the item's price after a sale for the purpose of avoiding Kixify transaction fees, misrepresent the item's location, or use another user's account without permission.
5. Prohibited, Questionable and Infringing Items and Activities
7. Information Control
Kixify does not control the Content provided by users that is made available on Kixify. You may find some Content to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks dealing with international trade and foreign nationals. By using Kixify, you agree to accept such risks and that Kixify (and Kixify's officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of users on Kixify. Please use caution, common sense, and practice safe buying and selling when using Kixify. Other Resources: Kixify is not responsible for the availability of outside websites or resources linked to or referenced on the Site. Kixify does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You agree that Kixify shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resources.
Users may arrange and attend online virtual meetings or in-person meetings ("Meetings") with one or more individuals. Users are solely responsible for interactions with others. Users must comply with Kixify's policies and acknowledge and agree to comply with the laws of the city, county and country in which the Meeting occurs. Additional eligibility requirements for a particular group or Meeting may be set by the group's contact person. Kixify is not involved with user generated groups, the groups' requirements, or the Meetings. Kixify does not supervise or control the Meetings, user-initiated online or offline gatherings, or the interactions among and between users and other persons or companies. Users are solely responsible for interactions with others. Users understand that Kixify does not in any way screen its users. All users agree to exercise caution and good judgment in all interactions with others, particularly if meeting offline or in person. Groups or User Fees: Some user-generated groups on Kixify may require or request that users pay fees in order to be a member of the group, participate in a promotion, or participate in Meetings. Kixify IS NOT INVOLVED IN THE TRANSACTIONS, THE PAYMENTS OR THEIR PROCESSING. THE PAYMENT DOES NOT GO TO Kixify; THIS MONEY IS SEPARATE FROM ANY FEES OR CHARGES ASSESSED BY Kixify, AND Kixify HAS NO CONTROL OVER THE MONEY, THE USER-GENERATED GROUPS, PROMOTIONS, THE MEETINGS, OR THE LEADER OF THE GROUP IN CONNECTION WITH ITS USE. YOU ACKNOWLEDGE AND AGREE THAT Kixify IS NEITHER INVOLVED NOR A PARTY IN ANY PAYMENT, TRANSACTION OR INTERACTION BETWEEN OR AMONG USER-GENERATED GROUPS, Kixify USERS AND/OR THIRD PARTIES (together a "Third Party Transaction"), AND THAT YOU BEAR ALL RISK IN CONNECTION WITH YOUR THIRD PARTY TRANSACTIONS. Users should use common sense and be careful in deciding whether to contribute money.
9. Resolution of Disputes and Release
In the event a dispute arises between you and Kixify, please contact Kixify. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in New York County, New York, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in the Southern District of New York. Use of the Site is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section. You and Kixify agree that any cause of action arising out of or related to the Site (including, but not limited to, any services provided or made available therein) or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Should you have a dispute with one or more users, or an outside party, you release Kixify (and Kixify's officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Kixify encourages users to report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable. Kixify, for the benefit of users, may try to help users resolve disputes. Kixify does so in Kixify's sole discretion, and Kixify has no obligation to resolve disputes between users or between users and outside parties. To the extent that Kixify attempts to resolve a dispute, Kixify will do so in good faith based solely on Kixify's policies. Kixify will not make judgments regarding legal issues or claims.
10. Kixify's Intellectual Property
Kixify, and other Kixify graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Kixify.com LLC. in the U.S. and/or other countries. Kixify's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion.
11. Access and Interference
14. No Warranty
Kixify, Kixify'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND Kixify'S SUPPLIERS PROVIDE Kixify'S WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. Kixify, Kixify'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND Kixify'S SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM Kixify SHALL CREATE ANY WARRANTY. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
15. Liability Limit
IN NO EVENT SHALL Kixify, AND (AS APPLICABLE) Kixify'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR Kixify'S SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE, Kixify'S SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. Kixify'S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF Kixify'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO Kixify IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
YOU AGREE TO INDEMNIFY AND HOLD Kixify AND (AS APPLICABLE) Kixify'S PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS' FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR BREACH OF THIS AGREEMENT OR THE DOCUMENTS IT INCORPORATES BY REFERENCE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.
17. No Guarantee
Kixify does not guarantee continuous, uninterrupted access to the Site, and operation of the Site may be interfered with by numerous factors outside Kixify's control.
18. Legal Compliance; Taxes
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and any Kixify service and, if applicable, your listing, purchase, solicitation of offers to purchase, and sale of items. In addition, you shall be responsible for paying any and all taxes applicable to any purchases or sales of items you make on the Site (excluding any taxes on Kixify's net income).
If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of this Agreement shall remain in full force and effect.
20. No Agency
You and Kixify are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
21. Kixify Service
22. Choice of Law
This Agreement shall in all respects be interpreted and construed with and by the laws of the State of New York, excluding its conflicts of laws rules, and the United States of America.
Sections 3 (Fees and Services, Fees and Termination), 6 (Content, License), 7 (Information Control), 8 (Meetings, Groups or User Fees), 9 (Resolution of Dispute and Release), 10 (Kixify's Intellectual Property), 11 (Access and Interference), 12 (Breach), 13 (Privacy), 14 (No Warranty), 15 (Liability Limit), 16 (Indemnity), 17 (No Guaranty), 19 (Severability), 20 (No Agency), 22 (Choice of Law) shall survive any termination or expiration of this Agreement.
Except as explicitly stated otherwise, any notices shall be given by postal mail to Kixify; Attn: Legal Department; 303 West 42nd Street Suite 600, New York, NY 10036 (in the case of Kixify) or, in your case, to the email address you provide to Kixify (either during the registration process or when your email address changes). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, Kixify may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Kixify. In such case, notice shall be deemed given three days after the date of mailing. For issues with intellectual property, please provide the notice as specified in Kixify's Copyright and Intellectual Property Policy.
The services hereunder are offered by Kixif.com LLC., located at 303 West 42nd Street Suite 600, New York, NY 10036. If you are a New York resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information. Effective Date: Jan 1, 2013 - Updated: Feb 6, 2013 Kixify reserves the right to alter these policies at any time.