Terms & Conditions

This Terms of Service (this “Terms of Service”) is agreed to between Kerry, Inc. (“Kerry”) and you, or if you represent an entity or other organization, that entity or organization (in either case, “You”).  

Kerry offers users of the website located at http://www.kerryfoodservice.com/ and other websites operated by Kerry displaying these Terms of Service (each, the “Site”) the ability to access certain information, data, and other content (“Content”) and use certain interactive functionality and services (“Services”) available through the Site.  This Terms of Service applies to Your use of and access to the Site and the Content and Services available through the Site.

PLEASE CAREFULLY READ THIS TERMS OF SERVICE.  BY ACCESSING OR USING THE SITE OR ANY CONTENT OR SERVICES, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS TERMS OF SERVICE, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS TERMS OF SERVICE.  IF YOU DO NOT AGREE TO THIS TERMS OF SERVICE, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS TERMS OF SERVICE, KERRY IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE SITE OR ANY CONTENT OR SERVICES ACCESSIBLE THROUGH THE SITE AND YOU MUST NOT ACCESS OR USE THE SITE OR ANY CONTENT OR SERVICES.  IF YOU ACCESS OR USE THE SITE OR ANY CONTENT OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS TERMS OF SERVICE AND AGREE TO BE BOUND BY THIS TERMS OF SERVICE.

Unless You later enter into any other agreements with Kerry regarding the Site or any Content or Services, this Terms of Service is the complete and exclusive agreement between You and Kerry regarding Your access to and use of the Platform and all Content and Services.  This Terms of Service supersedes any prior agreement or other communications between You and Kerry relating to Your use of and access to the Site and any Content or Services. 

1. DEFINITIONS.  Terms used in this Terms of Service have the definitions given in this Terms of Service or, if not defined in this Terms of Service, have their plain English meaning as commonly interpreted in the United States, even if Kerry provides a translated version of this Terms of Service.  To the extent any ambiguity or inconsistency exists between the English version of this Terms of Service and a version in any other language, the English (as interpreted in the United States) version of the Terms of Service controls.
2. TERM.  This Terms of Service is entered into as of the earlier of the date You first access or use the Site or any Content or Services (the "Effective Date") and will continue until terminated as set forth herein.
3. ELIGIBILITY.  You must be 18 years or older to access or use the Site or any Content, or Services.  By accessing or using the Site or any Content or Services, You represent that You are at least 18 years old.  The Site is intended to be used only by individuals and entities that can form legally binding contracts under applicable law.  By accessing the Site or any Content or Services You agree that you meet these eligibility requirements.
4. MODIFICATIONS.  Kerry reserves the right, at any time, to modify the Site or any Content or Services, with or without notice to You, by making those modifications available on the Site.  Kerry also reserves the right, at any time, to modify this Terms of Service.  Kerry will inform You of the presence of any changes to this Terms of Service by posting those changes on the Site or by providing You with notice through the Site.  Any modifications will be effective immediately upon posting on the Site or delivery of such notice through the Site.  You may terminate this Terms of Service as set forth below if You object to any such modifications.  However, You will be deemed to have agreed to any and all modifications through Your continued use of the Site or any Content or Services following such notice period.
5. YOUR CONTENT.   You are solely responsible for all data, ideas, submissions, questions, reviews, comments, and other content (including, text, audio, video, photographs, illustrations, graphics, testimonials, and other media) that You provide or generate through Your access and use of the Site or any Content or Services (collectively, “Your Content”).  As between You and Kerry, You retain ownership of Your Content.  However, subject to any limitations included in the Privacy Policy, You grant Kerry and its service providers a worldwide, nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable (including, to Users and other third parties) right to use, copy, sell, store, reproduce, modify, display, adapt, publish, translate, create derivative works from, and distribute (“Use”) Your Content in any for or format for purposes of operating the Site or for any other lawful business purpose of Kerry.  Additionally, when you post Your Content to the Site, you also grant Kerry the right to use Your name, or otherwise identify You, in connection with Your Content.  You represent and warrant that none of Your Content or the Use of Your Content by Kerry: (1) violates this Terms of Service, the Privacy Policy, or any applicable laws, rules, or regulations (“Laws”); (2) is libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (3) constitutes an infringement, misappropriation, or violation of the IPR or other rights of any third party; (4) is illegal in any way or advocates illegal activity; (5) is an advertisement or solicitation of goods or services (unless You have entered into a separate advertiser agreement with Kerry); (6) is false, misleading or inaccurate; or (7) is or could be considered junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement.  Kerry is not responsible or liable for any deletion, correction, destruction, damage, loss or failure to store, restore or back-up any of Your Content.  You agree that You have all right, title, interest, and consent in Your Content necessary to allow Kerry and its service providers to Use Your Content as set forth in this Terms of Service.
6. ACCESS.
   1. To the Site and Services.  Subject to Your compliance with this Terms of Service, Kerry will permit You to access and use the Site and Services solely you’re your own lawful purposes and only in accordance with this Terms of Service and any other agreement You agree to with Kerry before being given access to any specific aspects of the Site.  Any additional agreement is in addition to this Terms of Service and will govern Your use of the portions of the Site to which the additional agreement applies in the event of a conflict between the terms of this Terms of Service and the additional agreement.
   2. To Other Users.  The Site may allow You to link, connect, or otherwise communicate with other Users through the Site.  By linking, connecting, or communicating with other Users, You are agreeing to allow those Users to communicate directly with You through the Site.  You agree that You are solely responsible for all communications between You and any other User through the Site.  Your extension or acceptance of a link, connection, or other communication with another User will serve as Your affirmative “opt in” to the disclosure of any of Your Content or other data or information (which may include Your personally identifiable information) that You provide to that other User.
   3. To Content.  Unless otherwise noted on the Site, all Content available through the Site, including all text, audio, video, photographs, illustrations, graphics, testimonials, and other media, is owned by Kerry, Kerry’s third party providers, or by other users of the Site.  All Content is provided for informational purposes only and You are solely responsible for verifying the accuracy, completeness, and applicability of all Content and for Your use of any Content.  Subject to Your compliance with this Terms of Service, You may access the Content solely for Your own personal and noncommercial purposes in connection with Your own use of the Site and Services.  You will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any Content; or (c) alter, obscure or remove any copyright, trademark, or any other notices that are provided on or in connection with any Content.  Kerry has not verified the accuracy of, and will not be responsible for any errors or omissions in any Content.  Kerry makes no guarantees regarding the accuracy, currency, suitability, or quality of any Content.  Without limiting the foregoing, Kerry will not be held liable to You or any other third party for any Content, including Your Content under a Federal Law the Communications Decency Act or CDA, 47 U.S.C. § 230.  Except as set forth in this Terms of Service, You are granted no licenses or other rights in or to any Content, or any IPR therein or related thereto.  If You would like to use any Content in a manner not permitted by this Terms of Service, please contact Kerry.
   4. To Third-Party Services.  The Site may provide You with access to certain Services developed, provided, or maintained by other third-party service providers ("Third Party Services").  In addition to the terms of this Terms of Service, Your access to and use of any Third Party Services is also subject to any other agreement You may agree to before being given access to the Third Party Services (each, a "Third Party Service Agreement").  The terms of any Third Party Service Agreement (which may include payment of fees) will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Terms of Service, but will not apply to any other Services You may access through the Site.  Except as set forth in this Terms of Service, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Terms of Service and that Third Party Service Agreement.
7. TERMINATION.  You may cease use of the Site at any time.  If You also wish to disable access to Your Account and terminate this Agreement, You may contact Kerry as indicted on the Site to request that Your Account be disabled.  Kerry may terminate this Terms of Service at any time in its sole discretion by disabling access to Your Account or by providing notice to You.  Upon any termination of this Terms of Service: (1) all rights granted to You under this Terms of Service will terminate; (2) You will immediately cease all use of and access to the Site and all Services; (3) You will cease use of and delete all Content You obtained prior to termination; and (4) Kerry may, in its sole discretion, disable Your Account and delete any of Your Content.  Kerry may, in its sole discretion, fulfil any Orders pending at the time of any termination of this Terms of Service or cancel any pending Orders and refund any pre-paid amounts.  Sections titled Definitions, Termination, Suspension, Site Technology, Ownership, Representations and Warranties, Indemnity, Limitation on Liability, Data Privacy, Feedback, Claims of Infringement, Disputes, Governing Law and Venue, Notices, International Access, Linked Sites, and Additional Terms will survive any expiration or termination of this Terms of Service.
8. SUSPENSION.  Without limiting Kerry’s right to terminate this Terms of Service, Kerry may also suspend Your access to Your Account, the Site, any Content, or any Services, with or without notice to You, upon any actual, threatened, or suspected breach of this Terms of Service or applicable law or upon any other conduct deemed by Kerry, in its sole discretion, to be inappropriate or detrimental to the Site, Services, Kerry, or any other User or third party.
9. SITE TECHNOLOGY.  The Site, and the databases, software, hardware and other technology used by or on behalf of Kerry to operate the Site, and the structure, organization, and underlying data, information, and software code thereof (collectively, the "Technology"), constitute valuable trade secrets of Kerry.  You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in this Terms and Service; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of Your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance, or functionality of the Technology; (9) interfere with the operation or hosting of the Technology; or (10) introduce any viruses, Trojan horses, worms, logic bombs or other material into the Site that is harmful to the Site or Technology.
10. OWNERSHIP.  The Technology, all additions, improvements, updates, and modifications thereto, and all intellectual and proprietary property rights, including all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, and rights in data and databases (“IPR”), in and to the Technology are and will remain the sole and exclusive property of Kerry and its third party providers.  You receive no ownership interest in or to the Technology and You are not granted any right or license to use the Technology itself, apart from Your ability to access the Site, Content, and Services under this Terms of Service.  
11. KERRY MARKS.  The Kerry name and logo, and all names and logos displayed on the Site, through the Services, or in any Content, are trademarks or service marks of Kerry and its affiliates and third party providers.  You are granted no right or license to use any such trademarks or service marks.  Any use of such trademarks or service marks without Kerry’s express written consent is strictly prohibited.
12. REPRESENTATIONS AND WARRANTIES.
    1. Mutual.  Each party hereby represents and warrants to the other party that: (a) it has the legal right and authority to enter into this Terns of Service; (b) this Terms of Service forms a binding legal obligation on behalf of such party; and (c) it has the legal right and authority to perform its obligations under this Terms of Service and to grant the rights and licenses described in this Terms of Service.
    2. Compliance with Laws; Health Information. You acknowledge that the Site is a general purpose online service and is not specifically designed to facilitate compliance with any specific law.  You represent and warrant to Kerry that Your use of and access to the Site or any Content or Services, will comply with all applicable Laws and will not cause Kerry itself or any other third party to violate any applicable Laws.  Kerry is not responsible for notifying You of any such Laws, enabling Your compliance with any such Laws, or for Your failure to comply with any such Laws.  The Site may from time to time contain information relating to various Product nutritional information.  This information is provided for Your informational purposes only and is not meant to be a substitute for the advice provided by Your doctor or other medical professional.  Nothing contained on the Site shall be construed as medical information or advice.  You should not use the information contained herein for diagnosing or treating health, fitness, or nutritional issues.  Any reliance You place on such information is strictly at Your own risk.  
    3. No Warranties; Disclaimer. EXCEPT AS MAY OTHERWISE PROVIDED IN THE TERMS OF SALE SPECIFIC TO A PRODUCT, ALL PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES, WHETHER EXPRESS OR IMPLIED.  THE SITE AND ALL CONTENT AND SERVICES ARE PROVIDED STRICTLY "AS IS" AND "AS AVAILABLE."  KERRY AND ITS SERVICE PROVIDERS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY, OR CURRENCY OF THE SITE OR ANY CONTENT OR SERVICES, INCLUDING ANY PRODUCT INFORMATION DISPLAYED ON THE SITE. KERRY DOES NOT ENDORSE ANY PRODUCTS OR ANY VIEWS OR OPINIONS THAT MAY BE EXPRESSED IN THE CONTENT OR OTHERWISE PROVIDED THROUGH THE SITE.  KERRY AND ITS SERVICE PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SITE AND ALL CONTENT AND SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, COMPLETENESS, ACCURACY, OR NON-INFRINGEMENT.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KERRY, ITS EMPLOYEES, OR SERVICE PROVIDERS WILL INCREASE THE SCOPE OF, OR CREATE ANY WARRANTIES WITH RESPECT TO THE SITE OR ANY CONTENT, SERVICES, OR PRODUCTS. 
       
       KERRY AND ITS SERVICE PROVIDERS MAKE NO WARRANTY THAT (a) THE SITE WILL MEET YOUR REQUIREMENTS; (b) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY CONTENT OR SERVICES OBTAINED THROUGH THE SITE WILL MEET YOUR EXPECTATIONS; (e) THE SITE WILL NOT INCLUDE ANY TYPOGRAPHICAL OR OTHER ERRORS; OR (f) ANY ERRORS IN THE SITE WILL BE CORRECTED.  ANY CONTENT OR SERVICES OBTAINED THROUGH THE USE OF THE SITE IS OBTAINED AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
13. INDEMNITY.  You hereby agree to indemnify, defend, and hold harmless Kerry and its officers, directors, shareholders, affiliates, employees, agents, service providers, contractors, assigns, users, customers, providers, licensees, and successors in interest ("Indemnified Parties") from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation (“Claim”) against any Indemnified Party arising in any manner from: (1) Your access to or use of the Site or any Content or Services; (2) Your collection and disclosure of any Content or Services, (3) Your violation of applicable Laws; and (4) Your breach of any provision of this Terms of Service.  Kerry will use reasonable efforts to provide You with notice of any such claim or allegation, and Kerry will have the right to participate in the defense of any such claim at its expense.
14. LIMITATION ON LIABILITY.  KERRY AND ITS SERVICE PROVIDERS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE ACCESS TO OR USE OF THE SITE OR ANY CONTENT OR SERVICES, EVEN IF KERRY OR ITS SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT, GOODS OR SERVICES.  KERRY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS TERMS OF SERVICE, THE SITE AND ALL CONTENT AND SERVICES, OR ANY PRODUCTS PROVIDED UNDER THIS TERMS OF SERVICE OR THROUGH THE SITE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF $10 OR THE AMOUNTS PAID BY YOU RESULTING FROM ANY ORDERS MADE IN THE MONTH IMMEDIATELY PRECEDING THE ACT GIVING RISE TO SUCH LIABILITY.  YOU AGREE THAT KERRY WOULD NOT ENTER INTO THIS TERMS OF SERVICE WITHOUT THESE LIMITATIONS ON ITS LIABILITY.  IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, KERRY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
15. DATA PRIVACY.  You agree to comply with the Privacy Policy posted on the Site (the “Privacy Policy”).  You expressly consent to the use and disclosure of Your personally identifiable information and other data and information as described in the Privacy Policy (http://www.kerry.com/privacy).  Notwithstanding anything in the Privacy Policy, Kerry will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information (data or information that does not identify an entity or natural person as the source thereof) resulting from Your access to and use of the Site or any Services or Content.  To the extent any such non-personally identifiable data or information is collected or generated by Kerry, the data and information will be solely owned by Kerry and may be used by Kerry for any lawful business purpose without a duty of accounting to You, provided that the data and information is used only in an aggregated form, without directly identifying You or any other entity or natural person as the source thereof.
16. FEEDBACK.  If You provide Kerry any feedback or suggestions regarding the Site or any Content or Services (“Feedback”), You herby assign to Kerry all rights in the Feedback and agree that Kerry shall have the right to use such Feedback and related information in any manner it deems appropriate without a duty of accounting to You.  Kerry will treat any Feedback You provide to Kerry as non-confidential and non-proprietary.  You agree that You will not submit to Kerry any information or ideas that You consider to be confidential or proprietary.
17. CLAIMS OF INFRINGEMENT.  Kerry respects Your copyrights and other intellectual property rights and those of other third parties.  If You believe in good faith that Your copyrighted work has been reproduced on the Site without Your authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to:
    
    Kerry, Inc.
    Attention: Kerry Copyright Agent
    3400 Millington Rd.
    Beloit, WI 53511
    United States of America
    
    Please provide the following information to the Kerry Copyright Agent: (1) the identity of the allegedly infringing work; (2) Your name, address, daytime phone number, and email address, if available; (3) a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statement that the information in the notification is accurate and, under penalty of perjury, that You are authorized to act on behalf of the owner; and (5) Your electronic or physical signature.  Kerry will take whatever action, in its sole discretion, it deems appropriate, including the removing the allegedly infringing work from the Site.
18. DISPUTES.  Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Terms of Service, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Terms of Service and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Terms of Service (each, a "Dispute"), in accordance with the procedures set forth in this Section.  If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the American Arbitration Association ("AAA") then in effect (the "Rules").  Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules.  The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties.  If the parties cannot agree on the appointment of a single arbitrator within 30 days (the "Initial Period") after either party to this Terms of Service delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules.  The arbitration will be conducted exclusively in the English language at a site specified by Kerry in the State of Wisconsin, U.S.A.  The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator.  The award of the arbitrators will require payment of the costs, fees, and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party.  Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof.  Any additional costs, fees, or expenses incurred in enforcing the award may be charged against the party that resists its enforcement. 
19. GOVERNING LAW AND VENUE.  The interpretation of the rights and obligations of the parties under this Terms of Service, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Wisconsin , U.S.A., as such laws apply to contracts between residents of Wisconsin without regard to conflict of laws provisions thereof.  Subject to Section 19 (Disputes), each party will bring any action or proceeding arising from or relating to this Terms of Service exclusively in a federal or state court in the State of Wisconsin, U.S.A., and You irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by Kerry.
20. NOTICES.  Unless otherwise specified in this Terms of Service, any notices required or allowed under this Terms of Service will be provided to Kerry by postal mail to the address for Kerry listed on the Site.  Kerry may provide You with any notices required or allowed under this Terms of Service by sending You an email to any email address You provide to Kerry, provided that in the case of any notice applicable both to You and other Users of the Site, Kerry may instead provide such notice by posting on the Site.  Notices provided to Kerry will be deemed given when actually received by Kerry.  Notice provided to You will be deemed given 24 hours after posting to the Site or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
21. INTERNATIONAL ACCESS.  The Site may be accessed from countries other than the United States.  The Site may contain Products or references to Products that are not available outside of the United States.  Any such references do not imply that such products will be made available outside the United States.  If You access and use this Site outside the United States You are responsible for complying with Your local Laws in addition to any requirements outlined in this Terms of Service.
22. LINKED SITES. The Site or any Content or Services may contain links to third-party sites or content that are not under the control of Kerry.  If You access a third-party site or content from the Site or Services, then You do so at Your own risk and Kerry is not responsible for any content on any linked site.  You may establish a link to the Website, provided that the link does not state or imply any sponsorship or endorsement of Your site by Kerry or any group or individual affiliated with Kerry.  You may not use on Your site any Content or marks appearing on the Website or Site in establishing the link.  You may not frame or otherwise incorporate into another site the content or other materials on the Site without Kerry’s prior written consent.
23. ADDITIONAL TERMS. Unless otherwise amended, this Terms of Service will exclusively govern Your access to and use of the Site or any Content or Services, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Site or any Content or Services.  Except as expressly set forth in this Terms of Service, this Terms of Service may be amended or modified only by a writing signed by both parties.  You agree as it relates to our remedy at law for any actual or threatened breach of this Terms of Service that Kerry shall be entitled to specific performance or injunctive relieve, or both, in addition to any damages that we may be legally entitled to recover.  No right or remedy shall be exclusive of any other, whether at law or in equity.  All waivers by Kerry under this Terms of Service must be in writing or later acknowledged by Kerry in writing.  Any waiver or failure by Kerry to enforce any provision of this Terms of Service on one occasion will not be deemed a waiver by Kerry of any other provision or of such provision on any other occasion.  If any provision of this Terms of Service is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force.  The prevailing party in any lawsuit or proceeding arising from or related to this Terms of Service will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.  You agree that each of Kerry’s service providers shall be considered a third party beneficiary of the above provisions, with all rights to enforce such provisions as if a service provider were a party to this Terms of Service.  Neither this Terms of Service nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of Kerry.  Any assignment in violation of the foregoing will be null and void.  Kerry may assign this Terms of Service to any party that assumes Kerry’s obligations hereunder.  The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.  Any reference herein to "including" will mean "including, without limitation."