Welcome to Kick! Kick provides financial technology to support individual business owners.
Your use of the Kick technology platform (the “Services”) offered by Kick, Inc. (“Kick,” “we,” “our,” or “us) is governed by these terms of service between you and Kick (the "Agreement"). References to “Company” means a company, partnership, corporation or association that is applying for or has opened a Kick Account to use the Services. References to “User” mean an individual authorized to use the Services on Company’s behalf. References to “you” mean Company and User.
This Agreement provides that all disputes between you and Kick will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. Please review Section 22 (“Dispute Resolution by Binding Arbitration”) for the details regarding your agreement to arbitrate any dispute with Kick.
By accessing or using the Services, you agree to be bound to this Agreement, whether or not you are a registered User of the Services and open an account with Kick to access the Services (“Kick Account”). By using the Services, you are signifying that you have read, fully understand, and agree to be legally bound by this Agreement, and to comply with applicable local, state, national, and international laws, rules, and regulations (“Applicable Law”) as they may change from time to time. To use the Services, you must be able to form legally binding contracts, and may be required to agree to additional terms or agreements that apply to the particular Services you request. In the event of any conflict between this Agreement, and the terms or agreement that governs other services or products offered by Kick, such as the Kick Rewards Program, the provisions of such terms or agreement that apply to the particular Service will govern to the extent of the conflict. IF AT ANY TIME YOU CHOOSE NOT TO ACCEPT THIS AGREEMENT, YOU MUST REFRAIN FROM USING THE SERVICES. You are responsible for obtaining and maintaining all devices and other equipment and software, and all internet service providers, mobile service, and other services needed for your access to and use of the Site and you will be responsible for all charges related to them.
1. Services Offered by Kick
The Services offered by Kick help self-employed business owners manage their financial life. By opening a Kick account you’ll get access to all the financial tools you need–including cards, expense management, payments, taxes and cash back–without the typical fees.
2. Eligibility to Use the Services
The Services provided by Kick are commercial in nature and only available for entities organized and registered in the United States (such as S-corps, LLCs or sole proprietors). Upon registration of a Kick Account, such Company may authorize certain Users to access and use the Services provided by Kick on behalf of such Company. Any access to or use of the Services by anyone under the age of 18 is strictly prohibited and in violation of the Agreement, which is a binding contract between you and Kick.
3. Requirements for a Kick Account
By submitting an application for a Kick Account, the natural person submitting the application on behalf of Company represents and warrants, in an individual capacity and as an authorized representative of Company, that:
i. Company is validly existing and in good standing in its jurisdiction of organization; ii. Company is not engaged in any Prohibited and Restricted Activities, as identified in this Agreement; iii. The natural person who applies for a Kick Account on Company’s behalf is authorized to provide information about Company, submit the application on behalf of Company, enter into binding agreements on behalf of Company, and manage Company’s Kick Account; iv. The natural person who applies for a Kick Account on Company’s behalf is not under the age of 18. By using Kick, you represent and warrant that you are 18 or older; and v. All information provided to Kick is and will be current, accurate, and complete, and Company will use its Kick Account exclusively for business purposes and not for any personal, family, or household use.
4. Required information
Information required to open, operate, and maintain a Kick Account includes, but is not limited to:
i. Data to apply for and maintain a Kick Account and any Services. Data may include registered business name, business address, ownership details, contact information including email and phone number, tax identification number, the nature of the business, financial information, details for your linked Kick Accounts, and other business information that we may require or request from time to time (the “Company Data”); ii. You must also provide certain personal data including the names, contact information, personal addresses, social security numbers, and dates of birth of Users, beneficial owners, and control persons (“Personal Data”). We may also require that you provide certain documentary information used to verify Company Data and Personal Data including corporate registration certificate, proof of address, or personal identification. iii. To help the government fight the funding of terrorism and money laundering activities, U.S. federal law requires that financial institutions obtain, verify, and record Company Data and Personal Data identifying companies and their beneficial owners and control persons. You agree to provide the required information to open and maintain your Kick Account and agree to keep such information current.
5. Verification of Information
Kick relies on the accuracy of the information you provide when opening and maintaining your Kick Account. You acknowledge and agree that we may use and provide Company Data and Personal Data to third-party service providers to validate the information you have provided and determine your initial and continued eligibility for the Services, as described in the Privacy Policy. Your use of the Services must comply with this Agreement and Applicable Law. You are not eligible to use the Services if we have previously blocked your access to the Services and/or your Kick Account. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Services as permitted by this Agreement. We reserve all rights not expressly granted herein in the Agreement. Kick may terminate this license at any time for any reason or no reason.
6. Use of Kick Accounts
Use of the Services requires you to register for an account with us, the Kick Account, which gives you access to the services and functionality that we may offer from time to time, in our sole discretion.
You must provide complete and accurate information when registering your Kick Account, and you are responsible for keeping the information you provide up to date. You may visit our Support to update information about keeping information you provide up to date. As further detailed in our Privacy Policy and the Privacy Notice, in order to register, create and use a Kick Account, we may require that you submit certain personal information, including, but not limited to, your name, email, text-enabled cell phone number or other information. During the registration process, or when you access the Services, your device ID is also stored. You agree that the personal information you provide to us upon registration and at all other times will be true, accurate, current and complete, and you agree to maintain and update this personal information with us as necessary.
You are responsible for the activity that occurs on your Kick Account. You may never use another User’s Kick Account and you may never allow another person to use your Kick Account.
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. We have no liability for your interactions with other Users, or for any User’s action or inaction.
7. Account Approvals
We reserve the right to approve or deny your application for a Kick Account or grant you provisional access to the Services or your Kick Account while your application is pending additional review. We may deny your application, interrupt provision of the Services to you, or suspend or close your Kick Account where the information you provided is incomplete, inaccurate, or out of date.
8. Managing and Using Your Kick Account
Company is responsible and liable for any actions or failure to act on the part of Users, and those using credentials issued to Users to access Company’s Kick Account. Ensuring that Users are aware of and agree to abide by the terms of this Agreement and Applicable Law in connection with their use of the Services. Company is liable for any breach or violation by its Users of this Agreement or any of the agreements, terms, and policies incorporated by reference. Company is responsible for ensuring that Users and any other persons affiliated with Company communicate respectfully and will refrain from using any form of disrespectful, harassing, abusive, or hate speech with Kick team members. If Kick receives reports of any such behavior by representatives of your Company towards our team, we may contact you to suspend access to Company’s Kick Account and the Services, or close your Kick Account.
9. Prohibited and Restricted Activities
You agree not to engage in any of the following prohibited activities in connection with the Services and with the use of your Kick Account: • using the Services for personal, family, or household use; • copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; • using any automated system (including without limitation “robots,” “spiders,” “offline readers,” etc.) or technology or means other than those provided or expressly authorized by the Services, to access the Services; • attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Services; • taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on the Services or our infrastructure; • transmitting invalid data, viruses, worms, Trojan horses, or other software agents that may damage, interfere with, or burden the Services, our infrastructure, or any data stored or accessible in connection with the Services; • impersonating another person, otherwise misrepresenting your identity, or making payments or transfers on behalf of others; • transmitting any false, inaccurate, or misleading information; • conducting fraud, or transferring or receiving fraudulent funds; • interfering with the proper working of the Services;bypassing the measures we use to prevent or restrict access to the Services, including without limitation features that prevent or restrict access to or use of the Services; • using the Services to sell or purchase items that encourage, promote, facilitate or instruct others to engage in illegal activity, hate, violence, racial intolerance or harassment, including items that violate any law, statute, ordinance or regulation relating to such sales or purchases; • using the Services for financing of terrorism, money laundering, tax evasion or any other financial crimes that violate Applicable Laws; • Using the Services to facilitate transactions involving, but not limited to, production sales or distribution of controlled substances with or without a pharmaceutical license; guns, accessories, ammunition, and other weapons; prostitution or escort services; sale of counterfeit or "gray market" goods or services; facilitating any of the above; • engaging in any action or activity that violates or causes us to violate Applicable Laws, including any facilitating any transaction involving an individual, organization, country, or jurisdiction that is blocked or sanctioned by the United States, including those identified on any lists maintained by the U.S. Treasury Department’s Office of Foreign Assets Control or the U.S. Department of State; • engaging in the transferring of funds related to the sale or distribution of marijuana or marijuana paraphernalia, regardless of whether or not such sale is lawful in the jurisdiction in which you or the recipient reside; • the creation, facilitation, sale or distribution of goods or services that violate the intellectual property rights of a third party; • engaging in the transferring of funds related to the sale, distribution, or exchange of cryptocurrencies; and • permitting use of the Services by third parties unaffiliated with Company, or for any purpose not related to the business of Company.
10. Services Features and Availability
We reserve the right, without prior notice, change the Services; stop providing the Services or features of the Services, to you or to other users of the Services generally; or create usage limits for the Services. Notwithstanding the foregoing, if such changes include, without limitation, increases in fees or increased User liability, we will provide you with an electronic change-in-terms notice at least twenty-one (21) days before the changes take effect. We may permanently or temporarily terminate or suspend your access to the Services and/or to your Kick Account without notice or liability for any reason, including without limitation, if in our sole determination you violate any provision of the Agreement, or for no reason. Upon termination, you continue to be bound by the Agreement.
We reserve the right to update the lists of Prohibited and Restricted Activities at any time, and your continued use of the Services constitutes your acknowledgement of and agreement to abide by the same.
11. Security and Activities
You will keep your Kick Account secure and only provide access to individuals that you have authorized as Users of the Services on your behalf. You will take all reasonable steps to safeguard the privacy, confidentiality, and security of User credentials. You will closely and regularly monitor the activities of Users who access the Services, and you will use all reasonable means to protect Cards, checks, mobile devices, web browsers, and anything else used to access or utilize the Services. We may help you resolve unauthorized transactions, but you acknowledge and understand that you are responsible for any financial loss caused by Users or other persons given access to the Services or your Kick Account, and any financial for loss due to compromised credentials or due to any unauthorized use or modification of your Kick Account or the Services. Kick is not liable or responsible to you, and you waive any right to bring a claim against us, for any such losses. Company’s Kick Account is commercial in nature, and you acknowledge and understand that certain consumer protection laws (including the Electronic Funds Transfer Act or Regulation E) and consumer-specific rules (including NACHA rules specific to consumers) do not apply to transactions on your Kick Account or your use of the Services.
Kick uses what we believe to be commercially reasonable administrative, technical, and physical safeguards to preserve the integrity and security of personal information. However, we cannot guarantee the security of your personal information. It is possible that unauthorized third parties will be able to defeat our safeguards or use your personal information for improper purposes.
12. Notices and Communication
We will provide notices regarding certain activity and alerts to your Kick Account electronically through your Kick Account, email, push notification, or via text or SMS (“Notice”) to the contact information provided to us upon registration of a Kick Account. Notices regarding payments, legal terms, and any other important Notices related to your Company’s Kick Account will be sent to certain Users through your Kick Account or email and are considered received 24 hours after they are sent. You understand that you may not use the Services unless you consent to receive Notices electronically. You may only withdraw consent to receive Notices electronically by closing your Kick Account.
13. Updates to Company Information
You will keep Company Data and each User’s Personal Data current, complete, and accurate in your Kick Account at all times whether we provide you with full or provisional access. At any time during the term of this Agreement and your use of the Services, we may require additional information from you, including Company Data (such as copies of government-issued identification, business licenses, or other information related to your business) and Personal Data (such as copies of government-issued personal identification and proof of address) to verify beneficial owners or control persons, validate information you provided, verify the identity of Users, and assess Company’s financial condition and business risks.
14. Kick Property
The Services and all materials therein or transferred thereby, including, without limitation, software, code, images, text, graphics, illustrations, and logos (collectively, “Kick Content”), and all copyright, trademark, patent, trade secret, and other intellectual property rights (“Intellectual Property Rights”) related thereto, are the exclusive property of Kick and its licensors. Except as expressly provided in this section, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Kick Content. Use of the Kick Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
15. Identification as Customer
We may publicly reference you as a customer on our website or in other communications during the term of this Agreement. We will not express any false endorsement or partnerships. You grant Kick a limited license to use Company trademarks or service marks for this purpose. Please notify us if you prefer that we not identify you as a customer, and we will remove references to you on our website or in other communications.
16. Beta Services and Feedback
We sometimes release beta Services (“Beta Services”) in order to test new products, features, and programs, and we may make these Beta Services available to you to get your feedback. We may change or discontinue Beta Services at any time. Beta Services are confidential until we publicly announce the products, features, or programs, and if you use Beta Services, you agree to keep information about the Beta Services confidential.. Except where specifically notified by us, we will not compensate or credit you for feedback you provide to us. For the avoidance of doubt, the terms of this Agreement apply to the Beta Services offered by us.
17. Term and Termination
As stated above, this Agreement is effective upon your access or use of the Services, whether or not you are a registered User of the Services and open an account with Kick to access the Services. You may terminate your use of the Services by ceasing to use the Services, paying all amounts owed, and providing notice to us. We may decline to close your Kick Account if you have a negative balance in respect of the Services, if any funds that we are holding on your behalf are subject to a hold, lien or other restriction, or if we believe that the Kick Account is being closed to evade any legal or regulatory requirement or investigation.
Kick may permanently or temporarily terminate this Agreement or terminate access to your Kick Account or the Services at any time and for any reason by providing you Notice. If we believe you violated this Agreement or Applicable Law, or if required by one of our third-party service providers or by Applicable Law, we may terminate access to your Kick Account without prior Notice. You are responsible for all charges, fees, fines, and other losses caused by your action or inaction prior to termination, and for any costs we may incur in the process of closing your Kick Account upon termination by you or us. Upon termination of use of the Services, you continue to be bound by this Agreement.
18. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KICK NOR ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICES. UNDER NO CIRCUMSTANCES WILL KICK BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, KICK DOES NOT ASSUME LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF KICK CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM SERVICES, OR UNAVAILABILITY OF THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR OTHER MALICIOUS CODE OR SOFTWARE THAT MAY BE TRANSMITTED TO OR THROUGH SERVICES BY ANY THIRD PARTY; (VI) ANY BUGS, ERRORS OR OMISSIONS IN SERVICES OR ANY KICK CONTENT, OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; (VII) DELAYS, DISRUPTIONS OR AVAILABILITY OF THE SERVICES, OR PROCESSING OR SETTLEMENT OF FUND TRANSFERS; (VIII) SUSPENSIONS OR BLOCKING OF YOUR ACCESS TO OR USE OF THE SERVICES BY US; AND/OR (IX) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL KICK OR Its AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO KICK HEREUNDER OR $100, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF KICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
19. Disclaimer of Warranties by Kick
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, AND ALL INFORMATION CONTAINED ON OR ACCESSED FROM THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE ARE HEREBY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE RELEASEES MAKE NO REPRESENTATION OR WARRANTY THAT: (I) THE SERVICES WILL BE COMPATIBLE WITH YOUR DEVICE AND SOFTWARE; (II) THE SERVICES WILL BE AVAILABLE OR WILL FUNCTION WITHOUT INTERRUPTION OR ERROR; (III) THE USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE BROWSING AND DOWNLOADING OF ANY INFORMATION, WILL BE FREE OF ANY VIRUSES, TROJAN HORSES, WORMS OR OTHER DESTRUCTIVE, INTRUSIVE OR DISRUPTIVE COMPONENTS; (IV) THE TRANSMISSION OF INFORMATION TO AND FROM THE SERVICES WILL BE SECURE; (V) THE USE OF THE SERVICES, AND/OR THE CONTENT ON THE SERVICES, WILL NOT INFRINGE THE RIGHTS (INCLUDING, WITHOUT LIMITATION, INTELLECTUAL PROPERTY RIGHTS) OF ANY PERSON; OR (VI) THE USE OF THE SERVICES WILL NOT CAUSE ANY DAMAGE TO YOUR DEVICE SYSTEMS, SOFTWARE OR ELECTRONIC FILES.
COMMENTS OR OPINIONS EXPRESSED ON THE SERVICES ARE THOSE OF THEIR RESPECTIVE USERS ONLY. THE VIEWS EXPRESSED ON THE SERVICES AND IN USER CONTENT DO NOT NECESSARILY REPRESENT OR REFLECT THE VIEWS OF KICK. KICK IS NOT RESPONSIBLE FOR, AND DISCLAIMS ALL LIABILITY IN RELATION TO, THE USER CONTENT POSTED, UPLOADED OR OTHERWISE SUBMITTED TO OR THROUGH THE SERVICES.
ANY PRODUCTS AND/OR SERVICES DESCRIBED ON THE SITE ARE OFFERED IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED, AND SUCH DESCRIPTIONS ARE NOT AN OFFER OR SOLICITATION BY ANYONE IN ANYONE IN ANY JURISDICTION IN WHICH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE A SOLICITATION.
THE RELEASEES WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DAMAGES WHATSOEVER ARISING FROM, CONNECTED WITH, OR RELATING TO THE SERVICES. YOU EXPRESSLY ACKNOWLEDGE THAT KICK HAS ENTERED INTO THIS AGREEMENT WITH YOU AND MAKES THE SERVICES AVAILABLE TO YOU, IN RELIANCE UPON THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND KICK. YOU EXPRESSLY AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND THE DISCLAIMERS SET FORTH HEREIN WILL SURVIVE, AND CONTINUE TO APPLY IN THE CASE OF A FUNDAMENTAL BREACH OR BREACHES, THE FAILURE OF ESSENTIAL PURPOSE OF CONTRACT, THE FAILURE OF ANY EXCLUSIVE REMEDY, OR TERMINATION OF THIS AGREEMENT.
Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
20. Indemnification
You agree to indemnify, defend, and hold harmless Kick and Third-Party Service Providers (including our respective affiliates, directors, employees, agents, and representatives), from and against any and all losses, liabilities, claims, damages, demands, expenses, lawsuits, costs, and debt, including reasonable attorney’s fees, arising out of or related to: proceedings, suits, or actions brought by or initiated against Kick by any third party in connection with: (i) your use of and access to the Services, including, without limitation, any data or content transmitted or received by you; (ii) your use of any products or services provided by Bank; (iii) your violation of any term of this Agreement, including, without limitation, your breach of any of the representations and warranties above; (iv) your violation of any third-party right, including, without limitation, any right of privacy or Intellectual Property Rights; (v) your violation of any Applicable Law; (vi) any content that is submitted to Bank through the Services including, without limitation, misleading, false, or inaccurate information; (vii) your willful misconduct; or (viii) any other party’s access and use of the Services with your Kick Account. Kick reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will cooperate with Kick in asserting any available defense.
21. Governing Law
This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles, and federal law. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of our Intellectual Property Rights or other proprietary rights, as set forth in the Arbitration provision below, including, without limitation, any provisional relief required to prevent irreparable harm. You agree that California is the proper forum for any Kick related appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
22. Dispute Resolution by Binding Arbitration
YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN Section 22.3 BELOW.
22.1 Election to Arbitrate.
You and Kick agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section 22 (the “Arbitration Provision”), unless you opt out as provided in Section
22.3 below or your Claim is subject to an explicit exception to in this Arbitration Provision. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us on the other hand, relating to or arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result from this Agreement, including (except to the extent provided otherwise in the last sentence of Section 22.6 below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise, except that both you and Kick retain the right: (a) to bring an individual action in small claims court (a “Small Claims Action”); or (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, the misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (an “IP Protection Action”). Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
22.2 Opt-Out of Arbitration Provision.
You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to [insert email], within thirty (30) days of the date of your electronic acceptance of the terms of this Agreement (such notice, an “Arbitration Opt-Out Notice”). The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. If you don’t provide Kick with an Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Claim except with regard to a Small Claims Action or an IP Protection Action, as expressly set forth above.
22.3 Judicial Forum for Disputes.
In the event that (i) you or we bring an IP Protection Action; (ii) you timely provide Kick with an Arbitration Opt-out Notice; or (iii) this “Dispute Resolution by Binding Arbitration” section is found not to apply, the exclusive jurisdiction and venue of any Claim will be the state and federal courts located in Los Angeles County, California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You and we both further agree to waive our right to a jury trial.
22.4 Informal Dispute Resolution.
If a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you will try to resolve the Claim informally by contacting [insert email]. Similarly, Kick will undertake reasonable efforts to contact you (if we have contact information for you) to resolve any claim we may possess informally before taking any formal action. If a Claim is not resolved within 30 days after the email noting the Claim is sent, you or Kick may initiate an arbitration proceeding as described below.
22.5 WAIVER OF RIGHT TO LITIGATE.
Unless you timely provide Kick with an Arbitration Opt-out Notice, YOU ACKNOWLEDGE THAT YOU HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.
22.6 NO CLASS ACTIONS.
You and Kick agree that the arbitration of any Claim shall proceed on an individual basis, and neither you nor Kick may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Claim against Kick will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR KICK SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE CLAIMS BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY CLAIM IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY CLAIM (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. Any challenge to the validity of this Section 22.6 shall be determined exclusively by the arbitrator.
22.7 Arbitration Procedures.
The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Claims involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures (the applicable rule set, the “JAMS Rules”). If you have any questions concerning JAMS or would like to obtain a copy of the JAMS Rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the JAMS Rules apply. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from JAMS’ roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then JAMS will appoint the arbitrator in accordance with the JAMS Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available to you in an individual lawsuit and that are not waivable under applicable law. Notwithstanding any language to the contrary in this Section 22.7, if a party seeks injunctive relief that would significantly impact other Kick users as reasonably determined by either party, the parties agree that such arbitration will proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this Section shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential. This Arbitration Provision shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.
22.8 Arbitration Location.
Unless you and Kick otherwise agree, the arbitration will be conducted in the county where you reside, or if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Kick submit to the arbitrator, unless the arbitrator determines that a videoconference, telephonic or in-person hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the JAMS Rules. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
22.9 Arbitration Fees.
If we elect arbitration, we shall pay all the administrator's filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. However, if the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). In such circumstances, fees will be determined in accordance with the administrator rules. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law.
22.11 Arbitrator’s Decision.
The arbitrator will render an award within the time frame specified in the administrator rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof.
22.12 Survival and Severability of Arbitration Provision.
This Arbitration Provision shall survive the termination of this Agreement. With the exception of Section 22.6 “No Class Actions,” if a court decides that any part of this Arbitration Provision is invalid or unenforceable, then the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. In the event that a court finds that all or any portion of Section 22.6 “No Class Actions,” to be invalid or unenforceable, then the entirety of this Arbitration Provision shall be deemed void and any remaining Claim must be litigated in court pursuant to Section 22.4.
24. Privacy
Without limiting the generality of this Agreement, your use of the Services is also subject to the terms of our Privacy Policy and Privacy Notice. Please carefully review our Privacy Policy and Privacy Notice. By using the Services, you signify that you have read, fully understand and agree to be legally bound by our Privacy Policy and Privacy Notice.
25. Amendments to Agreement
Subject to Applicable Law, we reserve the right, in our sole and absolute discretion, to modify all or any portion of this Agreement, at any time without incurring any liability or obligation whatsoever to you or any other person or entity. If we do this, we will post the changes to these this Agreement at least thirty (30) days before the amendment comes into effect, and will indicate at the top of this page the date this Agreement was last revised. In addition, if you have registered for a Kick Account, where required by law or at our discretion, we will provide you notice using email and/or your mailing address, or any other contact information we have for you in our discretion. As required by law, or at our discretion, the notice will set out the new clause, or the amended clause and how it read formerly, and the date on which the change will come into effect. Before the change comes into effect, you may terminate your use of the Services rather than accept the change. To the fullest extent permitted by Applicable Law, your continued access to and/or use of the Services after the date specified in such notice constitutes your full acceptance of, and agreement to be legally bound by, the terms of the Agreement, as revised.
26. Severability; Waiver
If any provision of this Agreement is held to be invalid or not enforceable the remaining provisions will continue to be in full force and effect. Kick’s failure to enforce a right or provision for any period will not be deemed to signify a waiver of such right or provision.
27. Assignment
You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement or any of our rights or obligations under this Agreement at any time without notice to you.
28. Headings
Section numbers in this Agreement are for convenience of reference only, and shall not govern the interpretation of any provision of this Agreement.
29. Contact Us
If you have questions regarding this Agreement or to report any violations of this Agreement, please contact us at support@kick.app.
