Terms and Conditions of Use
Effective Date: March 27, 2013
You are responsible for your use of the Service, for any content you share through or post to the Service, and for any consequences thereof. The Content (as defined herein) you submit, send, share, post, or display using a public link will be viewable by other users of the Services and through third party services and websites (check “Disable public links” when sending a file to control who sees your Content). You should only provide Content that you are comfortable sharing with others under these Terms.
The Service that Kicksend provides is always evolving, and the form and nature of the Service may change from time to time without prior notice to you. In addition, Kicksend may stop (permanently or temporarily) providing the Service (or any features within the Service) to you or to users generally, and may not provide you with prior notice. Kicksend also retains the right to create limits on use and storage at our sole discretion at any time without prior notice to you. Kicksend reserves its right to make these changes to the Service for any reason or no reason at all.
Although we may attempt to notify you when major changes are made to these Terms of Service, you should periodically review the most up-to-date version (http://kicksend.com/terms). Kicksend may, in its sole discretion, modify or revise these Terms of Service and policies at any time, and your use of the Service following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits.Service
These Terms of Service apply to all users of the Service, including users who are also contributors of Content on the Service. “Content” includes the text, graphics, photos, sounds, music, videos, audiovisual combinations, and other materials you may send through, view on, access through, or contribute to the Service. The Service includes all aspects of Kicksend, including but not limited to all products, software and services offered via the Kicksend website, such as the Kicksend Desktop Application.
The Service may contain links to third party websites that are not owned or controlled by Kicksend. Kicksend has no control over, and assumes no responsibility for, the content, privacy policies, practices or performance of any third party website. In addition, Kicksend will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly relieve Kicksend from any and all liability arising from your use of any third-party website.
In order to access some features of the Service, you will have to create a Kicksend account. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Kicksend immediately of any breach of security or unauthorized use of your account.
Although Kicksend will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Kicksend or others due to such unauthorized use.Photograph Orders
As part of the Services, Kicksend offers you the ability to upload personal digital photographs and images (collectively, “Photos”) to the Kicksend website and submit orders to receive photographic prints and gift products of such Photos (“Photo Orders”). To submit a Photo Order, you must provide Kicksend with accurate and complete information such as your mailing address, the recipients’ shipping address (the “Shipping Address”) and your credit card and billing information (collectively, your “Payment Information”).
You understand and agree that: (1) all Photo Orders you submit are charged a fee according to the fee schedule found at the billing schedule; (2) you will be charged upfront and must pay for the Photo Orders at the time of ordering; (3) Photo Orders will be shipped to the Shipping Address as provided by you to Kicksend, and Kicksend will not be liable for any Photo Orders which are shipped to inaccurate Shipping Addresses due to your error; (4) Photo Orders are processed and shipped within 3 days of receipt Monday through Friday with the exception of holidays and Photo Orders received from December 15 through January 5 may not ship within 3 days, but will ship as soon as possible; and (5) Photo Orders containing more than one product code may ship separately.
You represent, warrant, and agree that: (i) your Photos do not infringe on or violate any copyright, moral right, trademark, patent, or any other proprietary or other right of any third party, including, but not limited to, any third party right to privacy or right of publicity; (ii) none of the Photos uploaded to the Kicksend website nor any other materials delivered by You to Kicksend contain any scandalous, pornographic, libelous or unlawful matter or material; (iii) Kicksend will not be responsible for any refunds, reprints or remakes of Photo Orders due to your errors in, including, but not limited to, uploading of Photos incorrectly, uploading and use of blurry or distorted Photos, incorrect sizing of Photo Orders, and incorrect Shipping Address; (iv) you are the authorized holder of the credit card used to pay for Photo Orders; (v) you authorize Kicksend to charge such credit card for payment of all submitted Photo Orders; and (vi) all Payment Information is accurate and up to date.
If you have any questions related to the ordering, billing or quality of Photo Orders, please contact us at email@example.com.General Use of the Service—Permissions and Restrictions
Kicksend hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that:
- - You agree not to distribute in any medium any part of the Service or the Content without Kicksend's prior written authorization, unless Kicksend makes available the means for such distribution through functionality offered by the Service (such as the Desktop App).
- - You agree not to alter or modify any part of the Service.
- - You agree not to access Content through any technology or means other than the Kicksend website, the Desktop App, your email account, or other explicitly authorized means Kicksend may designate.
You agree not to use the Service for any of the following unless you obtain Kicksend's prior written approval:
- - the sale of access to or data from the Service; or
- - the sale of advertising, sponsorships, or promotions placed on, around or within the Service or Content.
If you use the Desktop App on your computer, you may not modify, build upon, or block any portion or functionality of the Desktop App.
You agree not to use or launch any automated system, including without limitation, "robots," "spiders," "scrapers," or "offline readers," that accesses the Service in a manner that sends more request messages to the Kicksend servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, Kicksend grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. Kicksend reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., messages you send with files) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.
Content on the Services
All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. We do not monitor or control the Content posted via the Services, and we cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Service or obtained by you through the Service is at your own risk. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Service or endorse any opinions expressed via the Service. You understand that when using the Service, you will be exposed to Content from a variety of sources, and that Kicksend is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, objectionable, or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will Kicksend be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services or broadcast elsewhere.Your Use of Content
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content.
The Content on the Service, and the trademarks, service marks and logos ("Marks") on the Service, are owned by or licensed to Kicksend, subject to copyright and other intellectual property rights under the law.
Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of Kicksend or the respective licensors of the Content. Kicksend and its licensors reserve all rights not expressly granted in and to the Service and the Content.
You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
Your Content and Your Rights
You retain your rights to any Content you originate and submit, send, post or display on or through the Service (“Your Content”) and to your submitted Photos. For the avoidance of doubt, your rights do not extend to anything that you have downloaded or edited from the Content on the Service.
You understand that Kicksend does not guarantee any confidentiality with respect to any Content you submit. By submitting, posting or displaying Your Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
You agree that this license includes the right for Kicksend to make Your Content available to other companies, organizations or individuals who partner with Kicksend for the syndication, broadcast, distribution or publication of such Content on other media and services, subject to our terms and conditions for such Content use.
Such additional uses by Kicksend, or other companies, organizations or individuals who partner with Kicksend, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services.
We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.
You are responsible for your use of the Services, for any Content you provide, and for any consequences thereof, including the use of Your Content by other users and our third party partners. You understand that if you do not have the right to submit Content for such use, it may subject you to liability. Kicksend will not be responsible or liable for any use of your Content by Kicksend in accordance with these Terms. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.
Kicksend does not permit copyright infringement and/or the infringement of intellectual property rights on the Service, and Kicksend will remove any Content if properly notified that such Content infringes on another's intellectual property rights. Kicksend reserves the right to remove Content without prior notice.
All right, title, and interest in and to the Services (excluding Content provided by users) are and will remain the exclusive property of Kicksend and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in the Terms gives you a right to use the Kicksend name or any of the Kicksend trademarks, logos, domain names, and other distinctive brand features. Any feedback, comments, or suggestions you may provide regarding Kicksend or the Services is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.Account Termination Policy
Kicksend reserves the right to decide whether Content or Photos violate these Terms of Service for any reason, such as, but not limited to, infringement of intellectual property rights, pornography, obscenity, or excessive length. Kicksend may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user's account for submitting such material in violation of these Terms of Service.
Kicksend respects the intellectual property rights of others and expects users of the Service to do the same. For additional information, please see our Copyright Policy.Warranty Disclaimer
YOU AGREE THAT YOUR USE OF THE SERVICE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, KICKSEND, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF.
KICKSEND MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE SERVICE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. KICKSEND DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING OR ANY HYPERLINKED SERVICES. KICKSEND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
KICKSEND AND ITS LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND – EXPRESS OR IMPLIED – INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KICKSEND WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS DO NOT ALLOW DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY BY JURISDICTION. IN SUCH JURISDICTIONS, THE FOREGOING DISCLAIMERS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.Limitation of Liability
IN NO EVENT SHALL KICKSEND, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY CLAIMS ARISING OUT OF OR RELATING TO YOUR USE OR INABILITY TO USE THE SERVICE. THIS LIMITATION OF LIABILITY APPLIES TO, BUT SHALL NOT BE LIMITED TO, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT KICKSEND SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
The Service is controlled and offered by Kicksend from its facilities in the United States of America. Kicksend makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.Indemnity
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Kicksend, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party; or (v) any breach of your representations and warranties contained herein. This defense and indemnification obligation will survive these Terms of Service and your use of the Service.Ability to Accept Terms of Service
You affirm that you are either more than 18 years of age or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, please do not use the Service unless you are under the supervision of your legal parents or guardians.International Visitors
The Service is located within the United States. If you choose to use the Service from the European Union or other regions of the world, then please note that you are transferring your personally identifiable information outside of those regions to the United States for storage and processing. By providing your personally identifiable information on the Service you consent to that transfer, storage, and processing. Further, we may transfer this data from the United States to other jurisdictions in connection with storage and processing of data, fulfilling your requests, and operating the Service. By using the service, you are also agreeing that any claim or dispute that may arise between you and Kicksend will be governed by the laws of the State of California, and will be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California.Arbitration
All disputes between you and Kicksend will be resolved by BINDING ARBITRATION as described in more detail in the Arbitration Agreement included below. You thus GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this agreement (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. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than they would be in court. Arbitrator decisions are as enforceable as any court order and are subject to very limited review by courts or judges.Arbitration Agreement
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
You agree that, by entering into this Agreement, you and Kicksend are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement and the termination of your use of the Kicksend service.
If you elect to seek arbitration, you must first send to Kicksend, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Kicksend should be addressed to: Kicksend, Attn: Legal, 655 Castro St, #2, Mountain View, CA 94041 (“Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If Kicksend and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Kicksend may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by Kicksend or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Kicksend is entitled. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org.
After Kicksend receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000. (The filing fee currently is $125 for claims under $10,000 but is subject to change by the arbitration provider. If you are unable to pay this fee, Kicksend will pay it directly upon receiving a written request at the Notice Address.) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless Kicksend and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your primary residence. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as otherwise provided for herein, Kicksend will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds in favor of Kicksend as to the substance of your claim or the relief sought, you will reimburse Kicksend for your portion of the filing fee. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all AAA filing, administration, and arbitrator fees will be governed by the AAA Rules. In such case, you agree to reimburse Kicksend for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $10,000 in damages, the payment of these fees will be governed by the AAA rules.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND KICKSEND AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Kicksend agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void, and any claim or dispute between you and Kicksend that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Kicksend makes any future change to this arbitration provision (other than a change to the Notice Address), you may reject any such change by sending us written notice within 30 days of the change to the Arbitration Notice Address provided above. By rejecting any such change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision, and agree to promptly cease using the Kicksend service.General