Welcome to the Kirkland’s, Inc.’s websites, available at “Kirklands.com” and “MyKirklands.com” (collectively, the “Sites”).  The Sites are owned and operated by Kirkland’s, Inc. (“Kirkland’s”). Please read these Terms of Use carefully before using the Sites.  By accessing or using the Sites in any way, including, without limitation, browsing the Sites, using any information, placing an order, and/or submitting your personal information to Kirkland’s, you agree to and are bound by the terms, conditions, policies and notices contained in these Terms of Use (these “Terms”), including but not limited to conducting this transaction electronically, disclaimers of warranties, damage and remedy exclusions and limitations, and a choice of Tennessee law. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT USE THE SITES.

1.  Site Content.

(a)    The contents of the Sites are: ©2009 Kirkland’s. All rights reserved. The Sites contain copyrighted materials, trademarks, service marks, logos, trade dress and other proprietary content, including but not limited to text, software, sound, photographs, buttons, images, video and graphics (the “Content”), and the entire selection, coordination, arrangement and “look and feel” of each Site and the Content are copyrighted as a collective work under United States copyright laws (collectively, “Intellectual Property Rights”). You are only permitted to use the Content as expressly authorized herein or in writing by Kirkland’s.  Neither these Terms nor your use of the Sites transfers any right, title or interest in the Sites or the Content to you, and Kirkland’s and its third party licensors retain all of its and their respective Intellectual Property Rights in and to the Sites and Content. 

 

(b)   Except as provided in these Terms, you may not use, modify, republish, frame, print, display, reproduce, license, transfer, sell, assign, post, transmit, distribute, reverse engineer, create derivative works from, or otherwise exploit any Content or information from the Sites, in whole or in part, without the express written permission of Kirklands.  Requests for such permission should be made to Kirkland’s, Inc. at info@kirklands.com.

 

(c)    The Sites are available worldwide to anyone with Internet access. However, the Sites may not be continuously available due to maintenance or repairs or due to computer problems or crashes, disruption in Internet service or other unforeseen circumstances. The Sites, including any advertising content, are intended for use and display only where their use and display are permissible in accordance with applicable laws and regulations.  Further, a reference to a product or service on the Sites does not imply that such product or service is or will be available in your location.

 

(d)   Certain product, service, or company designations for companies other than Kirkland’s may be mentioned in the Sites for identification purposes only.  Third party trademarks, trade names, logos, product or services names contained on the Sites are the trademarks, registered or unregistered, of their respective owners. 

 

2.   User Conduct

By using this Site, including all Content and services available through it, you agree that you shall not:

 

(a)    delete, modify, hack or attempt to change or alter any of the Content on the Sites;

(b)   use any device, software or routine intended to damage or otherwise interfere with the proper functioning of the Sites or servers or networks connected to the Sites, or take any other action that interferes with other parties' use of the Sites;

(c)    use any robot, spider or other automatic or manual device or process for the purpose of harvesting or compiling information on the Sites for purposes other than for a generally available search engine;

(d)   use any Kirkland’s names, service marks, or trademarks without our prior written consent, including without limitation as metatags, search engine keywords, or hidden text;

(e)    use any material or information, including images or photographs, which are made available through the Sites in any manner that infringes any copyright, trademark, patent, trade secret or other proprietary right of any party;

(f)    upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another;

(g)    create a false identity for the purpose of misleading others;

(h)   provide false information on your account registration form, or impersonate someone else;

(i)     publish, post, upload, distribute or disseminate any inappropriate, profane, obscene, indecent or unlawful topic, name, material or information; or

(j)     defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of any third party.

 

3.  Permissible Use

Except as indicated to the contrary elsewhere on the Sites, you may view, copy, retransmit and print the Content available on the Sites subject to the following conditions:

 

(a)    the Content is used solely for personal, non-commercial informational purposes;

(b)   the Content is not provided, sold, licensed or leased (nor is access provided to the Content) for any fee or other consideration;

(c)    all copyright, trademark and other proprietary rights notices included in the Content as presented on the relevant Site appear on all copies;

(d)   the Content is not modified or altered in any way; and

(e)    no graphics are used separately from accompanying text. 

 

4.  Forums

There may be forums, bulletin boards, public commentary, discussion threads or blogs (the “Forums”) on the Sites.  These Forums offer an opportunity for communication and information sharing among a variety of participants. Kirkland’s hopes that the Forums provide users with a wealth of information and viewpoints. The following are guidelines for participation in the Forums, which apply both to content and hyperlinks to external sites posted by Forum contributors:

 

(a)    Kirkland’s encourages discussions, debates and even arguments in the Forums, but please share your thoughts politely and constructively. While we strongly encourage open debates, we want to make sure that they take place in a climate of mutual respect. User generated content that is abusive, vulgar, racist, slanderous, harassing, misleading, irrelevant, or otherwise objectionable is prohibited. Any comment that calls for unlawful or illegal behavior or might result in harm to others is not allowed.

 

(b)   User postings do not represent the professional advice or opinions of Kirkland’s or its staff. The results of any actions you take based on the advice you find in the Forums are your responsibility alone. You are solely responsible and liable for all activities conducted by you in such Forums and for the content of your postings and messages.

 

(c)    Users are solely responsible for ensuring that they do not act in any manner which constitutes, or forms a part of a course of conduct amounting to, a violation of any state, federal or other applicable competition law.  If you violate the terms of this Agreement, you may have your access to the Forums suspended or may permanently be banned from using such Forums.  In the event that any user has concerns that posted information is objectionable, the user is encouraged to contact Kirkland’s. 

 

(d)   You are not allowed to upload, post or transmit any message, data, code or software that would violate the proprietary rights of Kirkland’s or others, including unauthorized copyrighted text, images or programs, trade secrets or other confidential proprietary information, or any trademarks or service marks used in an infringing fashion. 

 

(e)    You are not allowed to post, upload or transmit photos or video of any third party without their express permission.  By uploading, transmitting or posting any content on the Sites or Forums, you warrant that you have express permission from all persons appearing in the media. 

 

(f)    You are not allowed to upload, post or transmit any materials, data or media that includes your personally identifiable information (“PII”) or the PII of any third party. 

 

(g)    You are not allowed to upload post or transmit any advertisements or solicitations of business, chain letters or pyramid schemes, or to upload, post, or transmit the same posting more than once.

 

Kirkland’s has no obligation to monitor any Forums on the Sites. However, Kirkland’s reserves the right to review, modify, distribute, remove or delete any posts in the Forums. Kirkland’s reserves the right at all times to disclose any information as Kirkland’s deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Kirkland’s sole discretion.    

 

By uploading, transmitting or posting any content, you grant Kirkland’s a perpetual, non-exclusive, worldwide, royalty-free license to use, copy, print, display, reproduce, modify, edit, publish, post, transmit, and distribute the content in its entirety or in part.  You also certify that any person appearing in the transmitted or posted content has authorized Kirkland’s to use copy, print, display, reproduce, modify, edit, publish, post, transmit, and distribute the content in its entirety or in part.  Kirkland’s is not obliged to maintain back-up copies of any material submitted or posted on the Forums.  You agree to indemnify Kirkland’s and its employees, affiliates, and directors from any and all claims and losses, including attorneys’ fees, arising from the transmitted or posted contents and any failure to comply with the Terms.    

 

5.  Submissions and Contributions

Kirkland’s does not seek or accept unsolicited ideas or suggestions relating to the development, design, manufacture or marketing of our products.  We also do not solicit or agree to pay for your creative ideas. If you choose to submit feedback, you acknowledge and agree that you do so voluntarily without creating any contract or confidentiality obligations. The content of your submission, including but not limited to remarks, suggestions, ideas, graphics or other content will become and remain the sole property of Kirkland’s, and Kirkland’s shall be entitled to use the submission and any ideas contained therein for any purpose whatsoever, without restriction and without compensation to you. You warrant that any materials, information and/or images you contribute or submit to Kirkland’s are original or are in the public domain and that you are the sole author with the full power to submit the same and to grant the above rights to Kirkland’s.    

 

6.  Order Acceptance.  

The Sites may provide an invitation for you to make us an offer to buy the items described. When you submit an order it constitutes an offer to us, which we accept only by shipping the item(s) ordered. Internet orders generate an automatic order confirmation email. These automatic order confirmation emails do not constitute our acceptance of the offer, and we reserve the right, at our sole discretion, to refuse or cancel any order for any reason. For your convenience, you will not be charged until your payment method is authorized, the order information is verified for accuracy, and your order is shipped. Some situations that may result in your order being cancelled include limitations on quantities available for purchase, inaccuracies or errors in product or pricing information, or problems identified regarding your credit information.  We also may require additional verifications or information before accepting any order. We will contact you if all or any portion of your order is cancelled or if additional information is required to accept your order. If your order is cancelled after your credit card has been charged, we will issue a credit to your credit card in the amount of the charge.

7.  Return Policy.

We want you to be happy with any purchase you may make through the Sites.  If you have purchased any products through the Sites and are not completely satisfied with your purchase, you may return any such items to any Kirkland’s store within sixty (60) days of purchase for an exchange, credit or full refund.  After sixty (60) days, you may return any such items for an exchange of items or store credit for the purchase price with the original receipt.  Any item returned six (6) months after the date of purchase will be returned at the current selling price for the item.  Kirkland’s reserves the right to refuse any return that occurs more than six (6) months from the date of purchase.

 

A returned item must be in the same condition in which it was sold (with the exception of manufacturer's defects) and accompanied by a receipt of purchase. Kirkland’s does not accept the return of products that have been damaged or soiled.  Custom items, such as embroidered items, are also non-returnable, unless there is damage to or a defect in the product, in which case Kirkland’s is happy to provide a replacement of the item you ordered. 

 

8.  Secure Ordering.

To provide credit card security and keep your personal information safe, Kirkland’s uses 128-bit Secure Socket Layer (SSL) technology, the industry standard encryption technology for secure Internet transactions. All of your information is encrypted. To protect your information once it is received by Kirkland’s, firewalls are designed to keep information safe and inaccessible to other Internet users. To confirm that your connection is secure, look for a locked padlock icon or solid key icon at the bottom of your browser window. The letters "https" (rather than "http") located in the URL address window at the top of your browser will indicate that you are using a secure browser.

 

9.  Accounts and Passwords.

Certain features or services offered on or through the Sites may require you to open an account (including setting up a user name and password).  You are solely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You agree to notify Kirkland’s immediately of any unauthorized use of your account or password. You may not use the account, user name or password of any other individual or company at any time without the express written permission and consent of the holder of the account, user name or password.  Kirkland’s will not be liable for any loss or damage arising from your failure to comply with this Section 9.

 

10.  Modifications to Terms.

Kirkland’s may change these Terms from time to time. Please review these Terms periodically for any updates or changes. Your continued use of the Sites following the posting of any updates or changes to these Terms means that you accept and agree to the updates and changes. If you object to any provision of these Terms or any subsequent modifications to these Terms, your only recourse is to immediately terminate use of the Sites.  Sections 1-7 and 9-21 of these Terms shall survive any such termination. 

 
11.  Termination or Modifications to Site.

Kirkland’s reserves the right to modify or terminate your access to the Sites (or portions of the Sites) at any time, temporarily or permanently, with or without notice to you. Kirkland’s may also impose limits on certain features, services, or all or a portion of the Sites without notice or liability.  You acknowledge and agree that Kirkland’s will not be liable to you or any third party in the event that Kirkland’s exercises its right to modify or terminate access to the Sites or portions of the Sites. 

 

12.  No Investment Advice; Forward Looking Statements

Nothing on the Sites constitutes investment advice. The Sites may contain information that includes or is based upon forward-looking statements within the meaning of the federal securities laws, specifically the Securities Litigation Reform Act of 1995. Forward-looking statements give our expectations or forecasts of future events. You can identify these statements by the fact that they do not relate strictly to historical or current facts. They typically use words such as “anticipate,” “estimate,” “expect,” “project,” “intend,” “plan,” “believe,” and other similar words.

 

Forward-looking statements can be affected by inaccurate assumptions or by known or unknown risks and uncertainties. Many such factors will be important in determining our actual future results. Consequently, no forward-looking statement can be guaranteed. Our actual results may vary materially, and there are no guarantees about the performance of our stock. Given these uncertainties, you should not place undue reliance on any forward-looking statements. You should review our SEC filings for more information on these and other factors besides those listed here that could also adversely affect Kirkland’s.

 

13.  Your Privacy.

Kirkland’s will treat any information it collects from you in accordance with its Privacy Policy, available at http:\\www.kirklands.com\t-security.aspx, which is hereby incorporated by reference. Please review the Privacy Policy before you use this Site. If you are unwilling to accept the practices outlined in the Privacy Policy, we ask that you not use this Site.

 

14.  Copyright Infringement.

In accordance with the Digital Millennium Copyright Act ("DMCA"), http://lcweb.loc.gov/copyright/, Kirkland’s has designated an agent to receive notifications of alleged copyright infringement associated with the Sites.  Kirkland’s will, upon receiving proper notice as set forth below, use commercially reasonable efforts to investigate notices of copyright infringement and take appropriate action under the DMCA. If you believe that your copyrighted work or the copyrighted work of another party is being infringed, please notify our copyright agent at info@kirklands.com or through the address set forth at the end of this page. When notifying Kirkland’s of the alleged copyright infringement, please include all of the following information:

 

(a)    a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest that is claimed to have been infringed;

(b)   Identification of the copyrighted work alleged to have been infringed;

(c)    a description of the material that is claimed to be infringing and information sufficient to locate the material on the applicable Site;

(d)   information sufficient to contact the complaining party, such as a physical address, telephone number, and, if available, an electronic mail address;

(e)    a statement that the complaining party has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

(f)    a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on the copyright owner’s behalf.

 

If material is believed in good faith by Kirkland’s to infringe a copyright or otherwise violate any intellectual property rights, Kirkland’s will remove or disable access to any such material.

15.  Other Sites, Content, Products and Services.

As a convenience to you, the Sites may run advertisements and provide links to web sites and access to content, products and services of third parties, including without limitation, Kirkland’s’ affiliates and strategic partners and other entities (“Linked Sites”). You should refer to the separate terms of use, privacy policies, and other notices posted on Linked Sites before you use them.  Kirkland’s does not author, edit or monitor these Linked Sites, and is not responsible or liable for (a) the availability of or content provided on such Linked Sites, nor does inclusion of any link imply endorsement of the Linked Sites by Kirkland’s, or vice versa; (b) third party content accessible through such Linked Sites; (c) any loss or damage whatsoever you may incur from dealing with any Linked Site; or (d) your dealings with any third parties found on or through this Site, the payment for and delivery of goods if any, or any terms, conditions, warranties, or representations associated with such dealings. You bear all risk associated with your use of such Linked Sites, third party services, and your correspondence or business dealings with third parties found on or through this Site.

16.  Typographical Errors; Colors.

Our goal is to provide complete, accurate, and up-to-date information on our Sites. Unfortunately, it is not possible to ensure that any web site is completely free of human or technological errors. This Sites may contain typographical mistakes, inaccuracies, or omissions, some of which may relate to pricing and availability, and some information may not be complete or current. Kirkland’s therefore reserves the right to correct any errors, inaccuracies or omissions (including after an order has been submitted) and to change or update information at any time without prior notice. We sincerely apologize for any inconvenience this may cause.  In the event that any merchandise or product offered on this Site is mistakenly listed at an incorrect price, Kirkland’s reserves the right to refuse or cancel any orders placed for such products listed at the incorrect price. Kirkland’s reserves the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, Kirkland’s will issue a credit to your credit card in the amount of the incorrect price.

 

In addition, we have done our best to display as accurately as possible the colors of the products shown on the Sites. However, because the colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.

 

17.  Disclaimer.

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SITES AND ALL CONTENT, MATERIALS, INFORMATION, PRODUCTS AND SERVICES PROVIDED ON THE SITE, ARE PROVIDED ON AN "AS IS, WHERE IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. KIRKLAND’S EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SECURITY AND ACCURACY, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.  KIRKLAND’S MAKES NO WARRANTY, AND EXPRESSLY DISCLAIMS ANY OBLIGATION, THAT: (A) THE SITES WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (B) THE CONTENT WILL BE UP-TO-DATE, COMPLETE, COMPREHENSIVE OR ACCURATE; OR (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SITES WILL MEET YOUR EXPECTATIONS.

18.  Limitation of Liability.

IN NO EVENT SHALL KIRKLAND’S, ITS DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, REVENUE, DATA, GOODWILL OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), ARISING FROM YOUR ACCESS TO OR INABILITY TO ACCESS, OR USE OF, THE SITES OR ANY SERVICES PROVIDED IN CONNECTION WITH THE SITES, EVEN IF KIRKLAND’S HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES.  THIS LIMITATION ON LIABILITY APPLIES TO, BUT IS NOT LIMITED TO, COMMUNICATIONS FAILURE, THEFT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT BODILY INJURY, PROPERTY DAMAGE, STRIKES OR ANY FORCE MAJEURE.  YOU ACKNOWLEDGE THAT THIS SECTION SHALL APPLY TO ANY AND ALL CONTENT, PRODUCTS AND SERVICES AVAILABLE THROUGH THE SITES.  If, notwithstanding the other provisions of these Terms, Kirkland’s is found to be liable to you or any third party for any damage or loss which arises out of your use of the Site or any Content or services provided in connection with the Site, Kirkland’s liability shall in no event exceed the greater of (a) the total of the last order completed in the six (6) months prior to the date of the initial claim made against Kirkland’s, or (b) $100.00.  Some jurisdictions do not allow certain limitations or exclusions of liability in some circumstances.  Therefore, some of the foregoing limitations may not apply to you. 

 

You agree that any claim or cause of action arising out of these Terms or your use of the Sites must be filed within one (1) year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary. Within this period, any failure by Kirkland’s to enforce or exercise any provision of these Terms or related right shall not constitute a waiver of that right or provision.

19.  Dispute Resolution.

You agree that any dispute arising out of or relating in any way to your use of the Sites or the purchase of products from Kirkland’s through the Sites requires that such claim be resolved exclusively by confidential binding arbitration except that, to the extent you have in any manner violated or threatened to violate Kirkland’s’ intellectual property rights, Kirkland’s may seek injunctive or other appropriate relief. The arbitration shall be conducted before three neutral arbitrators in the city of Nashville, Tennessee, U.S.A., in accordance with the rules of the American Arbitration Association ("AAA"), as then in effect. No claims of any other parties may be joined or otherwise combined in the arbitration proceeding. Unless otherwise expressly required by applicable law, each party shall bear its own attorneys' fees without regard to which party is deemed the prevailing party in the arbitration proceeding. Except for punitive and consequential damages (which may not be awarded), and subject to these Terms, the arbitrators shall be authorized to award either party any provisional or equitable remedy permitted by applicable law. The parties shall equally share all AAA charges and fees associated with the arbitration.

 

BECAUSE USE OF THE SITES REQUIRES THE ARBITRATION OF ANY CLAIMS OR DISPUTES EXISTING BETWEEN THE PARTIES, NEITHER PARTY WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING. THE ARBITRATORS' DECISION WILL BE FINAL AND BINDING. OTHER RIGHTS THAT EITHER PARTY WOULD HAVE IF SUCH PARTY WENT TO COURT, INCLUDING WITHOUT LIMITATION THE RIGHT TO CONDUCT DISCOVERY OR TO APPEAL, MAY BE LIMITED OR UNAVAILABLE IN ARBITRATION.

 

The award of the arbitrators may be enforced in any court having jurisdiction thereof.  Each party hereby consents (a) to the non-exclusive jurisdiction of the courts of the State of Tennessee or to any Federal Court located within the State of Tennessee for any action (i) to compel arbitration, (ii) to enforce any award of the arbitrators, or (iii) at any time prior to the qualification and appointment of the arbitrators, for temporary, interim or provisional equitable remedies, and (b) to service of process in any such action by registered mail or any other means provided by law.  Should this Section 19 be deemed invalid or otherwise unenforceable for any reason, it shall be severed.  In such event, the parties to these Terms agree that exclusive jurisdiction and venue for any claims will be in state or federal courts in Nashville, Tennessee, and each party hereby waives any defense related to personal jurisdiction, process or venue.

20.  Acknowledgement. 

You acknowledge (a) that you have read and understood these Terms; and (b) that these Terms have the same force and effect as a signed agreement.

 

21.  General.

Kirkland’s may assign its rights and duties under these Terms without notice to you. You may not assign these Terms without the prior written consent of Kirkland’s. If any provision of these Terms is found by a court or arbitrator to be invalid, the parties agree that the court or arbitrator should give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms will remain in full force and effect.  Kirkland’s’ failure to act with respect to a breach by any user using the Sites does not constitute a waiver of its right to act with respect to subsequent or similar breaches.  These Terms will be governed by and construed in accordance with the laws of the State of Tennessee without regard to its choice of law provisions.  In the event of any conflict between foreign laws, rules and regulations and those of the United States, the laws, rules and regulations of the United States will govern.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.  These Terms, the Privacy Policy, and any modifications to the foregoing constitute the entire agreement between the parties with regard to the subject matter in these Terms and supersede all prior understandings and agreements, whether written or oral, as to such subject matter.

22.  Contact Information.

If you have any questions about these Terms, the practices of Kirkland’s, or your dealings with the Sites, please contact us through one of the methods listed below. 

 

E-mail:             info@kirklands.com

 

Address:          Guest Service

                        Kirkland’s, Inc.

431 Smith Lane

Jackson, TN 38301

 

Telephone:      (877) 208-6668          

 

 

 

Last Updated:  September 17, 2009

 

 

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