Terms of Service
Effective Date: June 18th, 2015
This software is provided by KickSync LLC. (hereinafter “KickSync,” “we” or “us”), which provides this website (the “Website”), the mobile application (the “App”, and together with the Website, the “Products”) and the services, functionality data, information, tools, updates and similar materials delivered or provided by KickSync (the “Services”) subject to your agreement to and compliance with the conditions set forth in this Terms of Service Agreement (the “Agreement”). This Agreement sets forth the legally binding terms and conditions governing your use of the Products and the Services, and the use by the entity on whose behalf you sign up. If you do not agree to these terms and conditions, you may not use the Products or the Services.
As long as you are in compliance with the conditions of this Agreement and all incorporated documents, KickSync hereby grants you a limited, revocable, non-assignable, non-transferrable, non-sublicensable, non-exclusive license to access and use the Products and Services and the materials thereon that are intended to be displayed publicly. No rights not explicitly listed are granted.
The following additional terms are incorporated into this Agreement as if fully set forth herein:
- Copyright Policy
- Complaint Policy (including Privacy and Trademark)
While we make reasonable efforts to ensure that the Products and Services remain available at all times and function in accordance with their descriptions, we do not represent or warrant that access to the Products or Services will be error-free or uninterrupted, and we do not guarantee that users will be able to access or use the Products or Services, or their features, at all times. Further, we do not guarantee that the Products or Services will function in accordance with third-party requirements, including but not limited to rules and requirements set by Amazon, and KickSync shall not be responsible for any consequences from any such non-compliance.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Products or the Services, or any part thereof, with or without notice. The Products and Services may contain typographical errors or inaccuracies, and may not be complete or current. We reserve the right to correct any such errors, inaccuracies or omissions and to change or update information at any time without prior notice.
Although KickSync may review, edit, remove or modify information from or on the Products or Services, it does not control the sources of this information, and does not guarantee the accuracy, suitability, completeness, currency, quality, adequacy or applicability of any such information.
In addition, although we reserve the right to review, remove or edit any content from the site, we do not routinely screen, monitor, or review the content on the Products or Services, including representation made by users of the Products and Services. YOU AGREE THAT KICKSYNC SHALL NOT BE RESPONSIBLE FOR ANY SUCH INFORMATION. YOUR RELIANCE ON ANY SUCH INFORMATION IS AT YOUR OWN RISK.
You must be over the age of 13 to register an account or use the Products or Services. When you create an account on behalf of an entity, you represent and warrant that you are authorized by said entity to create the account and to bind the entity to this Agreement and to purchases and orders that may be made through that account.
SUBSCRIPTION AND FEES
When you subscribe to the Product or Services, you agree to pay the fees for your purchase selection as outlined in the subscription page on the Product or Services. We use a third-party payment processor (the “Payment Processor”) to bill you through an online account for use of the Product and Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor.
You agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of the Product and Services in accordance with the purchases you have made, and you authorize us, through the Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
If you purchase a subscription, it may result in recurring charges to your payment card or method, and you agree that KickSync may charge such amounts until such a time as your subscription expires or you cancel the subscription, depending on the subscription type. WE MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT.
If you wish to cancel, upgrade or downgrade your subscription, you may do so at any time by contacting us at support@KickSync.com. Any charges incurred prior to cancellation or downgrade are non-refundable. If you upgrade your subscription, you will be charged the difference in your current subscription and the upgraded subscription at that time, and you will be charged the price for the upgraded subscription on an ongoing basis until cancellation. If you downgrade your subscription, you will be charged the reduced price at the beginning of your next billing cycle.
RULES OF CONDUCT
Your use of the Products and Services is conditioned on your compliance with the terms of this Agreement, including but not limited to these rules of conduct. You agree that you will not violate any applicable law or regulation in connection with your use of the Products or Services.
You agree not to distribute, upload, make available or otherwise publish through the Products, or Services any suggestions, information, ideas, comments, causes, promotions, documents, questions, notes, plans, drawings, proposals, or materials similar thereto (“Submissions”) or graphics, text, information, links, profiles, audio, photos, software, music, sounds, video, comments, messages or tags, or similar materials (“Content”) that: is unlawful or encourages another to engage in anything unlawful;
contains a virus or any other similar programs or software which may damage the operation of KickSync’s or another’s computer;
violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, right of privacy or publicity or other intellectual property right of any party; or, is false, inaccurate, fraudulent or misleading; is libelous, defamatory, pornographic, obscene, lewd, indecent, inappropriate, invasive of privacy or publicity rights, abusing, harassing, threatening or bullying.
You may not modify, adapt, translate, copy, reverse engineer, decompile or disassemble any portion of the Products or Services. Further, you may not interfere with or disrupt the operation of the Products or Services, including restricting or inhibiting any other person from using the Products or Services by means of hacking or defacing. Transmitting to or making available in connection with the Products or Services any denial of service attack, virus, worm, Trojan horse or other harmful code or activity is prohibited. You may not attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization. Further, you may not take any action that imposes, or may impose, in KickSync’s sole discretion, an unreasonable or disproportionately large load on KickSync’s infrastructure.
You are not licensed to access any portion of the Products or Services that are not public, and you may not attempt to override any security measures in place on the Products or Services.
CONTENT SUBMITTED OR MADE AVAILABLE TO KICKSYNC
You acknowledge that KickSync is under no obligation to maintain the Products or Services, or any information, causes, materials, Submissions, Content or other matter you submit, post or make available to or on the Products or Services. We reserve the right to withhold, remove and or discard any such material at any time. You are responsible for backing up your data at the times of your choosing, and KickSync will not be responsible if your content is removed from KickSync and you do not have any backups.
CONTENT SHARED THROUGH THE PRODUCTS OR SERVICES
You understand that by sharing information on the Products or Services, and requesting information to be sent through the Products or Services, you may be revealing information about yourself that you may include. You understand and acknowledge that you are fully aware and responsible for the impact of sharing such materials, and you agree that KickSync shall not be held responsible, and KickSync shall be released and held harmless by you from any liability or damages arising out of such conduct.
OUR INTELLECTUAL PROPERTY
KickSync’s graphics, logos, names, designs, page headers, button icons, scripts, and service names are trademarks, trade names and/or trade dress of KickSync. The “look” and “feel” of the Products and Services (including color combinations, button shapes, layout, design and all other graphical elements) are protected by U.S. copyright and trademark law. All product names, names of services, trademarks and service marks (“Marks”) are the property of KickSync or the property of their respective owners, as indicated. You may not use the Marks or copyrights for any purpose whatsoever other than as permitted by this Agreement.
PASSWORDS AND ACCOUNTS
You are responsible for controlling the access to and use of your account. Always make sure that your password is kept as confidential. You understand and agree that KickSync may assume that instructions from an individual associated with your account are authoritative and should be acted upon by KickSync. KickSync is not responsible for any unauthorized access to your account or profile, and any ramifications of such access, and is not required to take action to disable any account.
You agree that you will not bring an action against KickSync arising out of or related to any claimed unauthorized access using your account credentials. Under confirmed unauthorized use circumstances, KickSync may take reasonable efforts with reasonable speed, to disable, lock or otherwise address your situation. In the event that you would like to report a breach, please contact support@KickSync.com with the term “Account Breach Notice” in the subject line.
AFFILIATE MARKETING PROGRAM
KickSync may provide an affiliate marketing program (the “Marketing Program”), under which KickSync may pay third-parties to refer internet traffic to KickSync. The Marketing Program may further pay third-parties certain additional recurring fees if users referred by such third-party to KickSync subscribe to the Products or Services.
ENFORCEMENT AND TERMINATION
KickSync reserves the right to deny all or some portion of the Products or Services to any user, in KickSync’s sole discretion, at any time. If KickSync terminates your access without cause, and you are a paying subscriber, KickSync will issue you a pro-rata refund for any pre-paid but unused period of time. You will not be entitled to a refund or reimbursement of any kind if KickSync terminates your account for cause. Without limiting the foregoing or assuming additional legal obligations, KickSync has a policy of terminating repeat violators of the Copyright Act, in accordance with applicable law.
All grants of any rights from you to KickSync related to Content, Submissions, or other materials, including but not limited to copyright licenses, shall survive any termination of this Agreement. Further, your representations, defense and indemnification obligations survive any termination of this Agreement.
DISCLAIMERS AND LIMITATION ON LIABILITY
BY USING THE PRODUCTS AND SERVICES YOU AGREE AND ACKNOWLEDGE THAT KickSync PROVIDES THE PRODUCTS AND SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. KICKSYNC, ITS PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY,
MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM KICKSYNC SHALL CREATE ANY WARRANTY. USE OF THE PRODUCTS AND SERVICES IS AT YOUR SOLE RISK. KICKSYNC DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE PRODUCTS OR SERVICES AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PRODUCTS OR SERVICES ARE FREE OF INACCURACIES, MISREPRESENTATIONS BY USERS, VIRUSES OR OTHER HARMFUL COMPONENTS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL KICKSYNC, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE PRODUCTS OR SERVICES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE PRODUCTS OR SERVICES, EVEN IF KickSync AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Notwithstanding the foregoing, in the event that a court shall find that the above disclaimers are not enforceable, then you agree that neither KickSync nor any of its subsidiaries, affiliated companies, employees, members, shareholders, or directors shall be liable for (1) any damages in excess of $500.00 or (2) any indirect, incidental, punitive, special, or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the Products or Services. This limitation shall apply regardless of the basis of your claim or whether or not the limited remedies provided herein fail of their essential purpose.
You agree to defend, indemnify and hold KickSync and its suppliers, subsidiaries, licensors, and licensees, and each of their officers, directors, shareholders, members, employees and agents harmless from all allegations, judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees, expert witness fees, and costs of litigation arising out of or based on (a) Submissions or Content you submit, post to or transmit through the Products or Services (b) your use of the Products or Services, (c) your violation of the Agreement, and (d) any conduct, activity or action which is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the use of Products or Services.
DISPUTES, GOVERNING LAW AND JURISDICTION
You agree that any claim or dispute arising out of or relating in any way to your use of the Products or Services or any service provided by KickSync, will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement. The laws of the State of Washington shall govern this Agreement, and shall be used in any arbitration proceeding. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the following address:
2020 Maltby Road Suite 7-151
Bothell, WA 98021.
Arbitration under this Agreement will be conducted by the American Arbitration Association (AAA) under its rules then in effect. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. You and KickSync agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, both you and KickSync agree that parties have each waived any right to a jury trial.
Notwithstanding the foregoing, you agree that KickSync may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights. To the extent arbitrations does not apply, you agree that any dispute arising out of or relating to the Services, or to KickSync, may only be brought by you in a state or federal court located in Seattle, Washington. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN WASHINGTON.
POLICIES FOR CHILDREN
The Products and Services are not directed to individuals under the age of 13, nor do they contain information which would be potentially harmful to minors. In the event that KickSync discovers that a child under the age of 13 has provided personally identifiable information to us, we will make efforts to delete the child’s information in accordance with the Children’s Online Privacy Protection Act. Please see the Federal Trade Commission’s Products for (www.ftc.gov) for more information.
Notwithstanding the foregoing, pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your internet service provider for more information.
Severability. If any provision of this Agreement is found for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
Revisions. This Agreement may only be revised in a writing signed by KickSync. In the event that KickSync updates this Agreement and you are made aware of the update, your continued use of the Products or Services after the update shall constitute an agreement to the updated terms.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and KickSync as a result of this Agreement or your use of the Products or Services.
Assignment. KickSync may assign its rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without KickSync’s prior written consent, and any unauthorized assignment by you shall be null and void. No Waiver. Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Equitable Remedies. You hereby agree that KickSync would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and KickSync with respect to the Products and Services, and supersedes all prior or contemporaneous communications, whether electronic, oral or written.
If you believe in good faith that any material posted on our Products or Apps infringes the copyright in your work, please contact our copyright agent, designated under the Digital Millennium Copyright Act (“DMCA”) (17 U.S.C. §512(c)(3)), with correspondence containing the following:
- A physical or electronic signature of the owner, or a person authorized to act on behalf of the owner, of the copyright that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed;
- Identification, with information reasonably sufficient to allow its location of the material that is claimed to be infringing;
- Information reasonably sufficient to permit us to contact you;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and,
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of the requirements of this policy, your DMCA notice may not be valid. For any questions regarding this procedure, or to submit a complaint, please contact our designated DMCA Copyright Agent:
2020 Maltby Road Suite 7-151
Bothell, WA 98021
COMPLAINT POLICY (INCLUDING TRADEMARK AND PRIVACY)
If you believe in good faith that any material posted on the Products of Apps infringes any of your rights other than in copyright, or is otherwise unlawful, you must send a notice to legal@KickSync.com, containing the following information:
- Your name, physical address, e-mail address and phone number;
- A description of the material posted on the Site that you believe violates your rights or is otherwise unlawful, and which parts of said materials you believe should be remedied or removed;
- Identification of the location of the material on the Site;
- If you believe that the material violates your rights, a statement as to the basis of the rights that you claim are violated;
- If you believe that the material is unlawful or violates the rights of others, a statement as to the basis of this belief;
- A statement under penalty of perjury that you have a good faith belief that use of the material in the manner complained of is not authorized and that the information you are providing is accurate to the best of your knowledge and in good faith; and,
- Your physical or electronic signature.
If we receive a message that complies with all of these requirements, we will evaluate the submission, and if appropriate, in our sole discretion, we will take action. We may disclose your submission to the poster of the claimed violative material, or any other party.