Terms of service
Welcome to Kick & Push!
Kick & Push Inc., Inc. ("Company," "Kick & Push," "we," "us," "our") provides its services (described below) to you ("you," "your") through itswebsite located at http://www.kickandpush.com/ (the "Site") and through its mobile applications and related services (collectively, such services,including any new features and applications, and the Site, the "Service(s)"), subject to the following Terms of Service (as amended from time to time, the"Terms of Service"). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, wewill post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, eitherthrough the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier thanfourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effectiveimmediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
This Terms of Service contains an Arbitration Agreement, which will, with limited exception, require you to submit claims you have against us to bindingand final arbitration. Under the Arbitration Agreement, (1) you will only be permitted to pursue claims against Kick & Push on an individual basis, notas a plaintiff or class member in any class or representative action or proceeding, and (2) you will only be permitted to seek relief (including monetary,injunctive, and declaratory relief) on an individual basis.
Access and Use of the Service
Modifications to Service: Kick & Push reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. Youagree that Kick & Push will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that Kick & Push may establish general practices and limits concerning use of the Service, including without limitation the maximumperiod of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Kick & Push’s serverson your behalf. You agree that Kick & Push has no responsibility or liability for the deletion or failure to store any data or other content maintainedor uploaded by the Service. You acknowledge that Kick & Push reserves the right to terminate accounts that are inactive for an extended period of time.You further acknowledge that Kick & Push reserves the right to change these general practices and limits at any time, in its sole discretion, with orwithout notice.
Mobile Services: The Service includes certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobiledevice, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an applicationdownloaded and installed on a mobile device (collectively, the "Mobile Services"). To the extent you access the Service through a mobile device, yourwireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Servicesmay be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agreethat we may communicate with you regarding Kick & Push and other entities by SMS, MMS, text message or other electronic means to your mobile device andthat certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephonenumber, you agree to promptly update your Kick & Push account information to ensure that your messages are not sent to the person that acquires yourold number.
About the Services
The Services are designed to allow a user (an "Artist") to submit their Artwork (defined herein) which, if accepted by Kick & Push as set forth inthese Terms of Service, may be offered for sale as reproductions on various merchandise ("Merchandise") to patrons ("Patrons") on the Site (a "Campaign").Patrons may Merchandise from an Artist’s Campaign, which Kick & Push will use reasonable efforts to fulfill if and when the number of pre-orders for agiven piece of Merchandise meets the Goal (defined herein).
Initiating a Campaign:Artists may submit artwork or designs and other content (collectively, "Artwork") to be featured on Merchandise by following the instructions providedwithin the Services. In order to be accepted by Kick & Push for a Campaign ("Accepted"), your Artwork must meet certain specifications, including size,image quality, or other parameters which are subject to change from time to time. By submitting your Artwork, you represent and warrant that you own or arethe licensee of all trademark rights, copyrights, rights of publicity and other intellectual property or other proprietary rights necessary to create andconduct the Campaign, including any rights relating to any name, description, images, text or likenesses included in your Artwork ("Campaign Rights"). Youwill provide Kick & Push with evidence of your Campaign Rights upon request. You agree that you will not upload, transmit or, otherwise submit forconsideration for a Campaign any Artwork or other content to which you do not have all sufficient rights, or which:
is vulgar or obscene;
features content that aims to promote hate, violence, or harassment or a person or group based on a person’s gender or gender identity, age,ethnicity, nationality, sexual orientation, disability, or affiliation with any organization;
features nudity, sexual activity, or pornography; or
promotes illegal activity.
Notwithstanding anything in these Terms of Service to the Contrary, Kick & Push reserves the right not to Accept any Artwork for a Campaign, with orwithout a specific reason, in its sole discretion. You agree that you, and not Kick & Push, are responsible for your Artwork or other content yousubmit to the Services, even if your Campaign is Accepted.
Artwork License:For the purpose of implementing and fulfilling your Campaign and for the purpose of advertising and promoting the Kick & Push Service and Campaigns inany medium Kick & Push chooses, you hereby grant Kick & Push a nonexclusive, worldwide, transferable, perpetual, irrevocable, fully-sublicensablelicense under your Campaign Rights to copy, display, distribute, modify the Artwork and any other content you upload to the Services (including all relatedimages, text, content and information).
Ownership of Artwork:Kick & Push does not claim any ownership rights in your Artwork. Please be sure you maintain copies of all of your work. Kick & Push has noresponsibility or liability for the deletion or failure to store any content or information uploaded to the Kick & Push Service.
Payments to Artists:Kick & Push will pay the applicable Artist a percentage of the purchase price for any Merchandise incorporating such Artist’s Artwork actually soldthrough a Campaign (collectively, the "Artist Payments"), and in accordance with the schedule set forth in the Services or as otherwise agreed to by theArtist and Kick & Push at the time that the Artwork is accepted for a Campaign. Artists are responsible for all income taxes applicable to amounts youearn from a Campaign.
Partnership Disputes:If you work with other people on your Campaign, you are solely responsible for allocating Artist Payments, and Kick & Push is only obligated to makepayments to the original Artist registrant. In the event there is a dispute between you (as the original Artist registrant) and any third party (whether ornot such party is registered for the Kick & Push Service) regarding Artist Payments, Kick & Push will have no liability to such third party andwill have the right to continue to make payments solely to the original Artist registrant, or alternatively, Kick & Push may withhold payouts until thedispute is resolved, in Kick & Push’s sole discretion.
To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Kick & Pushinformation regarding your credit card or other payment instrument. You represent and warrant to Kick & Push that such information is true and that youare authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billingaddress or credit card expiration date) that may occur.
Pre-Orders; Payment Information:Patrons may submit pre-orders through the Site for Merchandise offered through a Campaign. Pre-orders will not be accepted or fulfilled by Kick & Pushuntil the Goal for the specific Merchandise has been reached. As used herein, "Goal" means the number of pre-orders for a specific piece of Merchandiseplaced within a given timeframe, in each case set by Kick & Push [confirm] and specified on the Site for each Campaign. Kick & Push shall determinein its sole, reasonable discretion whether a Goal has been reached. You will provide information regarding your payment instrument when you submit apre-order, but your payment instrument will only be charged and collected if and when the Goal is met for the Merchandise you have pre-ordered. If theCampaign has not reached its Goal, you will not be charged, no funds will be collected, and no money will change hands. In some cases, Kick & Push mayauthorize or reserve a charge on your credit card (or whatever payment method you use) for any amount up to the full pledge, at any time between the pledgeand the collection of funds. If you dispute any charges you must let Kick & Push know within sixty (60) days after the date that Kick & Pushcharges you. We reserve the right to change Kick & Push’s prices. Please see the http://www.kickandpush.com/customersupport applicable to your purchase of any Merchandisethrough the Site.
Canceling a Campaign:Artists and Patrons acknowledge and agree that Kick & Push may cancel a Campaign at any time. Kick & Push does not guarantee that a Campaign willmeet its Goal or generate a certain number of sales. If a Campaign is canceled after a Goal is met, Kick & Push may either fulfill or cancel anypre-orders submitted prior to cancellation of Campaign in its discretion.
Conditions of Use
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials("content") that you upload, post, publish or display (hereinafter, "upload") or email or otherwise use via the Service. The following are examples of thekind of content and/or use that is illegal or prohibited by Kick & Push. Kick & Push reserves the right to investigate and take appropriate legalaction against anyone who, in Kick & Push’s sole discretion, violates this provision, including without limitation, removing the offending content fromthe Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Serviceto:
transmit or upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a rightto upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files orprograms designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) posesor creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercialactivities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation;(vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous,invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Kick & Push, isobjectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Kick & Push or its usersto any harm or liability of any type;
interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies orregulations of networks connected to the Service; or
violate any applicable local, state, national or international law, or any regulations having the force of law;
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
solicit personal information from anyone under the age of 18;
harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes ofsending unsolicited emails or other unsolicited communications;
advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided forthrough the Service.
Special Notice for International Use; Export Controls: Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States exportcontrols. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using theSoftware is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of theService, including as it concerns online conduct and acceptable content.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate,copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of theService, or access to the Service. The Service is for your personal use.
Apple-Enabled Software Applications
Kick & Push offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc.("Apple"), among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software,"Apple-Enabled Software"), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Kick & Push and you acknowledge that these Terms of Service are concluded between Kick & Push and you only, and not with Apple, and that asbetween Kick & Push and Apple, Kick & Push, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-EnabledSoftware in, or otherwise be in conflict with, the App Store Terms of Service.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product thatyou own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Softwareto conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, ifany; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to theApple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to anywarranty, which will be Kick & Push’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
Kick & Push and you acknowledge that Kick & Push, not Apple, is responsible for addressing any claims of you or any third party relating tothe Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liabilityclaims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arisingunder consumer protection or similar legislation.
In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringesthat third party’s intellectual property rights, as between Kick & Push and Apple, Kick & Push, not Apple, will be solely responsible forthe investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated bythe U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restrictedparties.
If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Kick & Push as follows:
409 16th Street
Manhattan Beach, CA 90266
Kick & Push and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service with respect tothe Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will bedeemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third party beneficiarythereof.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features ("Service Content") that are protected by copyright, patent, trademark, tradesecret or other proprietary rights and laws. Except as expressly authorized by Kick & Push, you agree not to modify, copy, frame, scrape, rent, lease,loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does notapply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage inor use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by Kick & Push from accessing the Service(including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using aproxy IP address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology andsoftware underlying the Service or distributed in connection therewith are the property of Kick & Push, our affiliates and our partners (the"Software"). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any sourcecode, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Kick & Push.
The Kick & Push name and logos are trademarks and service marks of Kick & Push (collectively the "Kick & Push Trademarks"). Other Kick &Push, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or maynot endorse or be affiliated with or connected to Kick & Push. Nothing in this Terms of Service or the Service should be construed as granting, byimplication, estoppel, or otherwise, any license or right to use any of Kick & Push Trademarks displayed on the Service, without our prior writtenpermission in each instance. All goodwill generated from the use of Kick & Push Trademarks will inure to our exclusive benefit.
Third Party Material: Under no circumstances will Kick & Push be liable in any way for any content or materials of any third parties (including users), including, but notlimited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. Youacknowledge that Kick & Push does not pre-screen content, but that Kick & Push and its designees will have the right (but not the obligation) intheir sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Kick & Push and its designeeswill have the right to remove any content that violates these Terms of Service or is deemed by Kick & Push, in its sole discretion, to be otherwiseobjectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy,completeness, or usefulness of such content.
User Content Transmitted Through the Service: With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, "User Content"), yourepresent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights ofpublicity contained therein. By uploading any User Content you hereby grant and will grant Kick & Push and its affiliated companies a nonexclusive,worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store,modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form,medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service ("Submissions"), provided byyou to Kick & Push are non-confidential and Kick & Push will be entitled to the unrestricted use and dissemination of these Submissions for anypurpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that Kick & Push may preserve content and may also disclose content if required to do so by law or in the good faith beliefthat such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce theseTerms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety ofKick & Push, its users and the public. You understand that the technical processing and transmission of the Service, including your content, mayinvolve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints: Kick & Push respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a waythat constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Kick & Push of yourinfringement claim in accordance with the procedure set forth below.
Kick & Push will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act("DMCA") and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyrightinfringement should be emailed to Kick & Push’s Copyright Agent at firstname.lastname@example.org (Subject line: "DMCA Takedown Request"). You may also contactus by mail at:
409 16th Street
Manhattan Beach, CA 90266
To be effective, the notification must be in writing and contain the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual propertyinterest;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, itsagent, or the law;
a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright orintellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from thecopyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content, you may send a writtencounter-notice containing the following information to the Copyright Agent:
your physical or electronic signature;
identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before itwas removed or disabled;
a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of thecontent; and
your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located withinSouthern District of California and a statement that you will accept service of process from the person who provided notification of the allegedinfringement.
If a counter-notice is received by the Copyright Agent, Kick & Push will send a copy of the counter-notice to the original complaining party informingthat person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a courtorder against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more afterreceipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Kick & Push has adopted a policy of terminating, in appropriate circumstances and at Kick &Push's sole discretion, users who are deemed to be repeat infringers. Kick & Push may also at its sole discretion limit access to the Service and/orterminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Kick & Push has no controlover such sites and resources and Kick & Push is not responsible for and does not endorse such sites and resources. You further acknowledge and agreethat Kick & Push will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connectionwith use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with thirdparties found while using the Service are between you and the third party, and you agree that Kick & Push is not liable for any loss or claim that youmay have against any such third party.
Social Networking Services
In addition, Kick & Push is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice orstatements made available in connection with Social Networking Services. As such, Kick & Push is not liable for any damage or loss caused or alleged tobe caused by or in connection with use of or reliance on any such Social Networking Services. Kick & Push enables these features merely as aconvenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
Indemnity and Release
You agree to release, indemnify and hold Kick & Push and its affiliates and their officers, employees, directors and agents harmless from any from anyand all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of orrelating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of anyrights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claimswhich the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affectedhis settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. KICK & PUSH EXPRESSLY DISCLAIMS ALLWARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
KICK & PUSH MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE,(III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES,INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT KICK & PUSH WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, ORDAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF KICK & PUSH HASBEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USEOR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICESPURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOURTRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL KICK& PUSH’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID KICK & PUSH IN THE LAST SIX (6) MONTHS,OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESETERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
You agree that Kick & Push, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove anddiscard any content within the Service, for any reason, including, without limitation, for lack of use or if Kick & Push believes that you haveviolated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may begrounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Kick & Push may also in its sole discretionand at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to theService under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Kick & Push may immediatelydeactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service.Further, you agree that Kick & Push will not be liable to you or any third party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions with any other user in connection with the Service and Kick & Push will have noliability or responsibility with respect thereto. Kick & Push reserves the right, but has no obligation, to become involved in any way with disputesbetween you and any other user of the Service.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate
This Section is referred to in these Terms of Service as the "Arbitration Agreement." You agree that any and all disputes or claims that have arisen or mayarise between you and Kick & Push, whether relating to these Terms of Service (including any alleged breach thereof), the Services, any advertising,any aspect of the relationship between us, or otherwise, shall be resolved exclusively through final and binding arbitration, rather than a court inaccordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify.Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agenciescan, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Kick & Push are eachwaiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. TheFederal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND KICK & PUSH AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER INANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND KICK & PUSH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE ORJOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO,THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLYTO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
Pre-Arbitration Dispute Resolution
Kick & Push is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to thecustomer’s satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitrationmust first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Kick & Push should be sent to 409 16 th Street. Manhattan Beach, CA 90266 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute and (b) setforth the specific relief sought. If Kick & Push and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you orKick & Push may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Kick & Push or you shall notbe disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Kick & Push is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s ("AAA") rules and procedures, including theAAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information onthe AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumerarbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms ofthis Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would notresult in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are forthe arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement.Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the samedamages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by thearbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Kick & Push and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with dueconsideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall bemade by AAA. If your claim is for $10,000 or less, Kick & Push agrees that you may choose whether the arbitration will be conducted solely on the basisof documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shallissue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules, unless otherwiseprovided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Kick & Push will pay all ArbitrationFees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay yourportion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of theArbitration Fees, Kick & Push will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration willbe prohibitive as compared to the costs of litigation, Kick & Push will pay as much of the Arbitration Fees as the arbitrator deems necessary toprevent the arbitration from being cost-prohibitive. Finally, if the value of the relief sought is $75,000 or less, Kick & Push will pay reasonableattorneys’ fees should you prevail. Kick & Push will not seek attorneys’ fees from you. But, if you initiate an arbitration in which you seek more than$75,000 in relief, the payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of allparties.
If a court decides that any term or provision of this Arbitration Agreement other than Section (b) above is invalid or unenforceable, the parties agree toreplace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid orunenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions ofSection (b) is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service willcontinue to apply.
Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Service to the contrary, Kick & Push agrees that if it makes any future change to this ArbitrationAgreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Kick & Pushwritten notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing thatyou will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.
These Terms of Service constitute the entire agreement between you and Kick & Push and govern your use of the Service, superseding any prior agreementsbetween you and Kick & Push with respect to the Service. You also may be subject to additional terms and conditions that may apply when you useaffiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State ofCalifornia without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you andKick & Push agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Los Angeles County, California.The failure of Kick & Push to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right orprovision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that thecourt should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain infull force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use ofthe Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed versionof this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to thisagreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printedform. You may not assign this Terms of Service without the prior written consent of Kick & Push, but Kick & Push may assign or transfer this Termsof Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal orcontractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms ofService or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: TheComplaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 NorthMarket Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Kick & Push, Inc., 409 16 th Street. Manhattan Beach, CA 90266.
Questions? Concerns? Suggestions?
Please contact us at firstname.lastname@example.org to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service orthe Service.
Date of Last Revision: December 15, 2015