KICK

Terms of Service

Last Changes to Terms of Service: June 3, 2021

The policies below are applicable to Kick, Inc.’s (“Kick”, or “we”, or “us”, or “our”) network of websites that link to these Terms of Service (the “Agreement” or “Terms of Service”) (including any versions optimized for viewing on a wireless or tablet device); email newsletters published or distributed by Kick; apps published by Kick, including the “Kick” app; or any other services, interactive features, and communications made available by Kick, regardless of how accessed and/or used, that are operated by Kick, made available by Kick, or produced and maintained by Kick and Kick’s related companies (“Services”).

THESE TERMS OF SERVICE SET FORTH THE ENTIRE UNDERSTANDING AND AGREEMENT BETWEEN YOU AND Kick WITH RESPECT TO THE SUBJECT MATTER HEREOF. Kick DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ITS SERVICES, AND OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF Kick’S CONTROL.

BY USING OUR SERVICES, YOU ARE ACCEPTING THE PRACTICES DESCRIBED IN THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PLEASE DO NOT USE THE SERVICES. WE RESERVE THE RIGHT TO MODIFY OR AMEND THESE TERMS OF SERVICE FROM TIME TO TIME WITHOUT NOTICE. YOUR CONTINUED USE OF OUR SERVICES FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. UNLESS WE PROVIDE YOU WITH SPECIFIC NOTICE, NO CHANGES TO OUR TERMS OF SERVICE WILL APPLY RETROACTIVELY. For certain of our Services, you may also be required to execute Kick’s Rental Agreement, Waiver of Liability and Release and/or Privacy Policy.

This is a legal agreement between you (“you” or “user”) and Kick that states the material terms and conditions that govern your use of the Services. This Agreement, together with all updates, supplements, additional terms, and all of Kick’s rules and policies collectively constitute this “Agreement” between you and Kick.

1. Access License.

Kick grants you a limited, revocable, non-exclusive and non-transferable license to access and make use of the Services or its content. This license does not include any resale or commercial use of the Services or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the Services or their contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, cookies or similar data gathering and extraction tools. Except as expressly permitted herein, neither the Services nor any portion of the Services may be reproduced, sold, resold, visited or otherwise exploited for any purpose without Kick’s express written consent. Any unauthorized use automatically terminates the permissions and/or licenses granted by Kick to you.

2. Copyright and Ownership.

All of the content featured or displayed with respect to the Services, including, without limitation, text, graphics, photographs, images, moving images, sound and illustrations (“Content”), is owned by Kick, its licensors, vendors, agents and/or its Content providers. All elements of the Services, including, without limitation, the general design and the Content, are protected by trade dress, copyright, moral rights, trademark and other laws relating to intellectual property rights. The Services may only be used for the intended purpose for which such Services are being made available. Except as permitted by copyright law, you may not modify any Content or materials, and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information or work comprising the Services. Except as authorized under the copyright laws, you are responsible for obtaining permission before reusing any copyrighted material that is available on the Services. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Services. The Services, Content and all related rights shall remain the exclusive property of Kick or its licensors, vendors, agents and/or its Content providers, unless otherwise expressly agreed. You will not remove any copyright, trademark or other proprietary notices from material found on the Services.

3. Trademarks/No Endorsement.

All trademarks, service marks and trade names of Kick used herein (including but not limited to: Kick’s name, Kick’s corporate logo, the Services design, and any logos) (collectively “Marks”) are trademarks or registered trademarks of Kick or its affiliates, partners, vendors or licensors. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify Kick Marks in any way, including in advertising or publicity pertaining to distribution of materials on the Services, without Kick’s prior written consent. You shall not use Kick’s name or any language, pictures or symbols which could, in Kick’s judgment, imply Kick’s endorsement in any (i) written or oral advertising or presentation; or (ii) brochure, newsletter, book or other written material of whatever nature, without Kick’s prior written consent.

4. Account Registration and Security.

You understand that you will need to create an account to have access to the Services. You will: (i) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration, sign-in or subscription page (such information being the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is false, inaccurate, not current or incomplete, or Kick has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Kick has the right, in its sole discretion, to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof) to you. You are responsible for the security and confidentiality of your password and account. Furthermore, you are responsible for any and all activities that occur under your account. You will not share your account information or your user name and password with any third party or permit any third party to access the Services using your account information. You agree to immediately notify us of any unauthorized use of your account or any other breach of security relating to your account of which you become aware. You are responsible for taking precautions and providing security measures best suited for your situation and intended use of the Services. We have the right to provide user billing, account, Content or use records, and related information under certain circumstances (such as in response to legal responsibility, lawful process, orders, subpoenas, or warrants, or to protect our rights, customers or business).

5. Solicited Submission Policy.

Where Kick has specifically invited or requested submissions or comments, Kick encourages you to submit content (e.g. comments to blog posts, participation in communities, tips, etc.)(“User Submissions”) to Kick that Kick has created for consideration in connection with Kick’s official website, https://www.rideKick.com (the “Site”). User Submissions remain the intellectual property of the individual user. By posting content on our Site, you expressly grant Kick a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up worldwide, fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, perform and display such content and your name, voice and/or likeness contained in your User Submission, in whole or in part, and in any form throughout the world, in any media or technology, whether now known or hereafter discovered, including all promotion, advertising, marketing, merchandising, publicity and any other ancillary uses thereof, including the unfettered right to sublicense such rights, in perpetuity throughout the universe. Any such User Submissions are deemed non-confidential and Kick shall be under no obligation to maintain the confidentiality of any information, in whatever form, contained in any User Submission.

6. Inappropriate User Submissions.

Kick does not encourage, and does not seek User Submissions that result from any activity that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement or physical or mental illness to you, to any other person or to any living being; (ii) may create a risk of any other loss or damage to any person or property; or (iii) may constitute a crime or tort. You agree that you have not, and will not, engage in any of the foregoing activities in connection with creating your User Submission. Without limiting the foregoing, you agree that in conjunction with your User Submission, you will not inflict emotional distress on other people; will not humiliate other people (publicly or otherwise); will not assault or threaten other people; will not enter onto private property without permission; will not impersonate any other person or misrepresent your affiliation, title or authority; and will not otherwise engage in any activity that may result in injury, death, property damage, diminution of value; and/or liability of any kind. Kick will reject any User Submissions which Kick believes, in its sole discretion, involves any of the foregoing. If notified that a User Submission allegedly violates any provision of these Agreement, Kick reserves the right to determine, in its sole discretion, if such a violation has occurred, and to remove any such User Submission from the Services at any time and without notice.

7. Inappropriate Material.

You are prohibited from using the Services (i) to post or send any unlawful, infringing, threatening, defamatory, libelous, obscene, pornographic, lude or profane material; (ii) post or send any material that infringes upon or misappropriates third party intellectual property; or (iii) in any manner which could constitute or encourage conduct that would be considered a criminal offense or otherwise violate any law. You further agree that sending or posting unsolicited advertisements or “spam” on or through the Services is expressly prohibited by this Agreement. In addition to any remedies that Kick may have at law or in equity, if Kick determines, in its sole discretion, that you have violated or are likely to violate any of the foregoing prohibitions or any applicable rules or policies contained in or linked to this Agreement, Kick may take any action it deems necessary to cure or prevent such violation, including, without limitation, banning you from using the Services and/or the immediate removal of the related materials from the Services at any time without notice. Kick will fully cooperate with any law enforcement authorities or court order or subpoena requesting or directing us to disclose the identity of anyone posting such materials.

8. Access and Interference.

You agree that you will not use any robot, spider, scraper or other automated means to access the Services for any purpose. Additionally, you agree that you will not: (i) take any action that imposes, or may impose, in Kick’s sole discretion, an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Kick Site or any activities conducted on the Services; or (iii) bypass any measures used to prevent or restrict access to the Services.

9. Right to Takedown Content.

Except as disclosed in our Privacy Policy, we will not monitor, edit, or disclose the contents of a user’s e-mail or User Content posted to the Services unless (i) required to do so in the course of normal maintenance of the Services and any related systems; (ii) required to do so by law; or (iii) in Kick’s good-faith belief that such action is necessary to: (a) comply with any law or with legal process served on Kick or the Services; (b) protect and defend the rights Kick, Kick’s property, the Services, or the users of the Services; or (c) act in an emergency to protect the personal safety of our users, the Services or the public. Users shall remain solely responsible for the content of their messages and Kick shall have no obligation to prescreen any such User Content; provided, however, Kick shall have the right, in its sole discretion, to edit, refuse to post or remove any User Content submitted to, or posted on, the Services, at any time without notice. Without limiting the foregoing, Kick shall have the right to (i) remove any material that it finds to be in violation of the provisions contained herein or otherwise objectionable; and (ii) deny access to the Services, or any portion thereof, to any user who fails to conform to any provision of this Agreement.

10. User Published Content.

User published Content and User Submissions do not represent the views of Kick or any individual associated with Kick, and we do not control such User published Content or User Submissions. In no event shall you represent or suggest, directly or indirectly, Kick’s endorsement of user published Content and User Submissions. Kick does not vouch for the accuracy or credibility of any user published Content or User Submissions published through or on the Services, and Kick does not take any responsibility or assume any liability for any actions you may take as a result of reviewing any such User published Content or User Submission. Through your use of the Services, you may be exposed to Content that you may find offensive, objectionable, harmful, inaccurate or deceptive. There may also be risks of dealing with underage persons, people acting under false pretense, international trade issues and foreign nationals. By using our Services and Services, you assume all associated risks.

11. Third Party Links.

From time to time, the Services may contain links to websites that are not owned, operated or controlled by Kick or its affiliates (the “Third Party Links”). All such Third Party Links are provided solely as a convenience to you. If you use the Third Party Links, you will leave the Services. Neither Kick nor any of Kick’s respective affiliates are responsible for any content, materials or other information located on, or accessible through, any Third Party Links or on other websites. Neither Kick nor any of Kick’s respective affiliates endorse, guarantee or make any representations or warranties regarding any other websites, including any content, materials or other information accessible through Third Party Links or on any other websites, including any harm or effect to you resulting from your use any other websites. If you decide to access any other websites via Third Party Links, you do so entirely at your own risk.

12. Transactional Partners.

From time to time, Kick may partner with an unrelated entity to jointly promote their services within our Services. In such instances, you may be transacting directly with such unrelated other party. On those pages or locations, the unrelated party’s brand will be clearly visible and its terms of service will be posted. When using such unrelated party’s pages, you are bound by both the unrelated party’s partner terms of service and by Kick Terms of Service. When there is a conflict between these Terms of Service and the third party’s terms of service, the Third Party’s terms of service will prevail.

13. Termination.

We may suspend or terminate your right to use the Services at any time, with or without cause. We may also block your access to our Services in the event that (i) you breach these Terms of Service; (ii) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for Kick, you or our users.

14. Representations and Warranties.

You represent that you (i) are over the age of 18; (ii) have the right and authority to enter into this Agreement; (ii) are fully able and competent to satisfy the terms, conditions, and obligations herein; and (iv) you will use of the Services in full compliance with all applicable laws. You further represent that you have read, understood, agree with, and will abide by the terms of this Agreement. In addition, you represent and warrant that your User Submissions, if any, and all elements thereof, are (i) owned or controlled solely and exclusively by you, you have prior written permission from the rightful owner of the content included in your User Submissions, or you are otherwise legally entitled to grant Kick all of the rights granted by this Agreement; and (ii) Kick’s use of your User Submissions, as described or contemplated herein, do not, and will not, infringe on the copyrights, trademark rights, publicity rights or other rights of any person or entity; violate any law, regulation or right of any kind whatsoever; or otherwise give rise to any actionable claim or liability, including, without limitation, rights of publicity, privacy and defamation. Furthermore, You shall be solely responsible for your own User Submissions and any consequences resulting from the posting or publishing of such User Submissions.

15. DISCLAIMERS.

YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER Kick, NOR ANY OF ITS AFFILIATES, WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, MATERIALS OR SERVICES PROVIDED ON, OR THROUGH, THE SERVICES. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE SERVICES MAY BE OUT OF DATE, AND NEITHER Kick, NOR ANY OF ITS AFFILIATES MAKE ANY COMMITMENT OR ASSUMES ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. NO ADVICE OR INFORMATION, OBTAINED FROM Kick OR THROUGH THE SERVICES, WHETHER ORAL OR WRITTEN, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

16. LIMITATIONS OF LIABILITY.

Kick DOES NOT ASSUME ANY RESPONSIBILITY, NOR WILL IT BE LIABLE, FOR ANY DAMAGES TO, OR ANY VIRUSES THAT MAY INFECT YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT OR OTHER PROPERTY, CAUSED BY, OR ARISING FROM, YOUR ACCESS TO, USE OF OR BROWSING THE SERVICES, OR YOUR DOWNLOADING OF ANY INFORMATION OR MATERIALS FROM THIS SERVICE. IN NO EVENT WILL Kick, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, PROFESSIONALS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE SERVICES, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USING THE SERVICES, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED ON ANY OR ALL OF THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

IN THE EVENT OF ANY PROBLEM WITH THE SERVICES; ANY MATERIALS RELATED TO THE SERVCIES; OR INFORMATION CONTAINED ON OF THE SERVICES, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE SERVICES. IN NO EVENT SHALL Kick’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EXCEED THE GREATER OF (A) TWENTY FIVE DOLLARS (US $25.00); OR (B) THE AMOUNT OF FEES YOU HAVE PAID Kick IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.

17. Indemnity.

You agree to defend, indemnify and hold harmless, Kick and any affiliated entity or individual from any and all liabilities, costs and expenses, including reasonable attorneys’ fees, related to or in connection with (i) the use of the Services or your placement or transmission of any User Submission or other content, message or information on this Services by you or your authorized users; (ii) your violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties set forth herein; (iii) your violation of any third party right, including, without limitation, any right of privacy, publicity rights or intellectual property rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim or damages that arise as a result of any User Submission that you provide to Kick, including, without limitation, any claim or damages arising from a defamation or invasion of privacy claim; or (vi) any other party’s access and use of the Services with your unique username, password or other appropriate security code.

18. Release.

In the event that you have a dispute with one or more other users of the Services, you release Kick and Kick’s officers, directors, agents, professionals, subsidiaries, joint ventures and employees, from any and all claims, demands and damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

19. Force Majeure.

Neither Kick nor you shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond such party’s reasonable control, including, without limitation: (i) fire, lightning, explosion, power surge or failure, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies; (ii) any law, order, regulation, ordinance, or requirement of any government or legal body or any representative of any such government or legal body; (iii) labor unrest, including without limitation, strikes, slowdowns, picketing, or boycotts; (iv) inability to secure raw materials, transportation facilities, fuel; (v) energy shortages, or (vi) acts or omissions of other common carriers.

20. Privacy.

Data collection and use, including data collection and use of personally identifiable information is governed by Kick’s Privacy Policy (available at https://www.Kickride.com/privacy-policy which is incorporated herein by reference and is made part of this Agreement.

21. General.

Any claim relating to, and the use of, these Services and the materials contained therein, is governed by the laws of the State of Illinois. You consent to the exclusive jurisdiction of the state and federal courts located in Cook County, Illinois. A printed version of these Terms of Service will be admissible in judicial and administrative proceedings based upon, or relating to, these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

22. DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) NOTICE.

In operating the Services, we may act as a “services provider” (as defined by DMCA) and offer services as an online provider of materials and links to third party websites. As a result, third party materials that we do not own or control may be transmitted, stored, accessed or otherwise made available using the Services. Kick has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Services. Kick has adopted a policy that provides for the removal of any content or the potential suspension of any user that is found to have (i) repeatedly infringed on the rights of Kick or of a third party; (ii) that has otherwise violated any intellectual property laws or regulation; or (ii) has violated any of the terms and conditions of this Agreement. If you believe any material available via the Services infringes a copyright, you should notify us using the notice procedure for claimed infringement under the DMCA (17 U.S.C. Sect. 512(c)(2)). We will attempt to expeditiously remove or disable access to the any material claimed to be infringing, and we will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the Content. Our designated agent (i.e., proper party for notice) to whom you should address infringement notices under the DMCA is: [email protected].

Your notice should include the following information:

Identify intellectual property that you claim has been infringed
Identify the material on the Services that you claim is infringing, with enough detail so that we may locate it on the Services
A statement by you that you have a good faith belief that the use of the intellectual property is not authorized by law, the intellectual property’s owner or such owner’s agent.
A statement by you declaring under penalty of perjury that (i) the above information in your notice is accurate; and (ii) that you are the owner of the intellectual property interest involved or that you are authorized to act on the owner’s behalf
Your address, telephone number and email address
Your physical or electronic signature.
We may give notice to our users of any infringement notice by means of a general notice on any of our Services, electronic mail to a user’s email address in our records or by written communication sent by first-class mail to a user’s physical address in our records. If you receive such an infringement notice, you may provide counter-notification in writing to the designated agent that includes the below information. To be effective, the counter-notification must be a written communication that includes the following:

Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled.
A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled
Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person
Your physical or electronic signature.

23. Severability.

If any provision of these Terms of Service shall be or become unlawful, void, invalid or for any reason unenforceable, then that provision shall be deemed severable from the remaining Terms of Service and shall not affect the validity and enforceability of any remaining provisions contained herein.

24. Assignment.

These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Kick without restriction. Any assignment attempted to be made by you in violation of these Terms of Service shall be void. These Terms of Service will be binding upon and inure to the benefit of the parties hereto, and to such parties’ permitted successors and assigns.

25. Headings.

The heading references herein are for convenience purposes only, do not constitute a part of these Terms of Service, and shall not be deemed to limit or affect any of the provisions hereof.

26. Waiver.

A provision of these Terms of Service may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Kick to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision.

27. Survival.

The provisions of these Terms of Service that are intended to survive the termination of these Terms of Service by their nature will survive the termination or expiration of these Terms of Service.

28. Additional Assistance.

If you do not understand any of the foregoing Terms of Service or if you have any questions or comments, please contact us [email protected].

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