1. Use of the Services and Kickask Materials. The Application and the information and content available on the Website and in the Services (as these terms are defined below) (collectively, the “Kickask Materials”) are protected by copyright laws throughout the world. Subject to these Terms, Kickask grants you a limited license to reproduce portions of the Kickask Materials for the sole purpose of using the Services for your personal or non-commercial purposes. Unless otherwise specified by Kickask in a separate license, your right to use any Kickask Materials that you access or download through the Website, the Application, or the Services is subject to the Terms.
1.1 Application License. Subject to your compliance with these Terms, Kickask grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Kickask’s software application for mobile devices (the “Application”) on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
1.2 Updates. You understand that the Website, the Application, and the Services are evolving. As a result, Kickask may require you to accept updates to the Website, the Application, or the Services that you have installed on your computer or mobile device. You acknowledge and agree that Kickask may update the Website, the Application, and/or the Services with or without notifying you. You may need to update third party software from time to time in order to receive the Services or use the Website, the Application and/or .
1.3 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Website or any portion of the Website, including any Kickask Materials, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Kickask Materials (including images, text, page layout or form) of Kickask; (c) you shall not use any metatags or other “hidden text” using Kickask’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Kickask Materials except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website; (f) access the Kickask Materials in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Kickask Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Kickask Materials. Any future release, update or other addition to the Kickask Materials shall be subject to these Terms. Kickask, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Website, the Application, or the Services terminates the licenses granted by Kickask pursuant to the Terms.
1.4 Third Party Materials. As a part of the Kickask Materials, you may have access to materials that are hosted by another party. You agree that it is impossible for Kickask to monitor such materials and that you access these materials at your own risk.
2.1 Registering your Account. In order to access certain features of the Website, the Application, and the Services you may be required to become a Registered User. For purposes of these Terms, a “Registered User” is a User who has registered an account on the Website (“Account”) or has a valid account on the social networking service (“SNS”) through which the User has connected to the Services (each such account, a “Third Party Account”).
2.2 Access through an SNS. If you access the Services through an SNS as part of the functionality of the Website and the Services, you may link your Account with Third Party Accounts allowing Kickask to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to grant Kickask access to your Third Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Kickask to pay any fees or making Kickask subject to any usage limitations imposed by such third party service providers. By granting Kickask access to any Third Party Accounts, you understand that Kickask will access, make available and store (if applicable) any Content that you have provided to and stored in your Third Party Account (“SNS Content”) so that it is available on and through the Website and Services via your Account Unless otherwise specified in the Terms, all SNS Content shall be considered to be Your Content (as defined in Section 4.1) for all purposes of the Terms. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts will be available on and through your Account on the Website and Services. Please note that if a Third Party Account or associated service becomes unavailable or Kickask’s access to such Third Party Account is terminated by the third party service provider, then SNS Content will no longer be available on and through the Website and Services. You have the ability to disable the connection between your Account and your Third Party Accounts at any time by accessing the “Settings” section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Kickask makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement and Kickask is not responsible for any SNS Content. As a Registered User, you can create a profile, on which you may include information such as your name, email address, birthday and your school and classes. You are welcome to share as much or as little information in your profile as you wish, and you may toggle the privacy of certain pieces of information.
2.3 Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Kickask Materials or the Services by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or Kickask has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Kickask has the right to suspend or terminate your Account and refuse any and all current or future use of the Kickask Materials and/or the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Kickask reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Kickask Materials and/or the Services if you have been previously removed by Kickask, or if you have been previously banned from the Services.
2.4 Activities Under your Account. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify Kickask immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.
2.5 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Kickask Materials and the Services, including but not limited to, a mobile device that is suitable to connect with and use the Kickask Materials and the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Kickask Materials and the Services.
3. Responsibility for Content.
3.1 Types of Content. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Website, the Application or the Services, whether publicly posted or privately transmitted, including the Kickask Materials (“Content”), are the sole responsibility of the party from whom such Content originated. This means that you, and not Kickask, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services, the Application, or the Website (“Your Content”), and other Users of the Services, and not Kickask, are similarly responsible for all Content they Make Available through the Services, the Application, or the Website (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Kickask has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Kickask reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Kickask pre-screens, refuses or removes any Content, you acknowledge that Kickask will do so for Kickask’s benefit, not yours. Without limiting the foregoing, Kickask shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
3.3 Storage. Unless expressly agreed to by Kickask in writing elsewhere, Kickask has no obligation to store any of Your Content that you Make Available on the Website, the Application, or via the Services. Kickask has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Kickask retains the right to create reasonable limits on Kickask’s use and storage of the Content, including Your Content, such as limits on file size, storage space, and similar limits described in the web pages accompanying the Services and as otherwise determined by Kickask in its sole discretion.
4.1 Kickask Materials. Except with respect to Your Content and User Content, you agree that Kickask and its suppliers own all rights, title and interest in the Website, the Services, and the Kickask Materials (including but not limited to, any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a Kickask game client, and the Kickask game clients and server software) You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the Kickask Materials.
4.2 Trademarks. Kickask’s stylized name and other related graphics, logos, service marks and trade names used on the Website, in the Kickask Materials or in connection with the Services are the trademarks of Kickask and may not be used without permission in connection with any third party products or services. Other trademarks, service marks and trade names that may appear on the Website, in the Kickask Materials or in connection with the Services are the property of their respective owners.
4.3 Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Website, the Application, , or the Services.
4.4 Your Content. Kickask does not claim ownership of Your Content. However, when you as a User post or publish Your Content on or in the Website or the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.5 License to Your Content. By submitting Your Content, which shall include your username, to any “public area” of the Website or the Services, you grant Kickask a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, publicly display, derive revenue or other remuneration from, and communicate to the public, Your Content (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right, including moral rights, that may exist in Your Content. You also warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not the Kickask, are responsible for all of Your Content that you Make Available on or in the Website, or the Services, whether publicly posted or privately transmitted.
4.6 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on the Website or the Services, you hereby expressly permit Kickask to identify you by your username (which may be a pseudonym) as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
4.7 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Kickask.
4.8 Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s permission.
4.9 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Kickask through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Kickask has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Kickask a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Website, the Application, and the Services.
5. User Conduct.
5.1 Commercial Activities. You agree that you will not, under any circumstances (except to the extent expressly authorized by these Terms):
(a) Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the Website, Services (including your Account), Kickask Materials, or access to or use of the Website, Services or Kickask Materials;
(b) Upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
(c) Use the Website, Services, or Kickask Materials or any part thereof for any commercial purpose, including, but not limited to communicating or facilitating any commercial advertisement or solicitation;
(d) Engage in any chain letters, contests, junk email, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise); or
(e) Market any goods or services for any business purposes.
5.2 Unauthorized Use or Access. You agree that you will not, under any circumstances:
(a) Interfere or attempt to interfere with the proper functioning of the Website, Services or Kickask Materials or connect to or use the Website, Services or Kickask Materials in any way not expressly permitted by the Terms;
(b) Systematically retrieve data or other content from our Website, Services or Kickask Materials to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
(c) Use, display, mirror or frame the Website, Services or Kickask Materials, or any individual element within the Website, Services, or Kickask Materials, Kickask’s name, any Kickask trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Kickask’s express written consent;
(d) Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through the Website, Services or Kickask Materials or that is in transit from or to the Website, Services, or Kickask Materials, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the Website, Services, or Kickask Materials;
(e) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Services, whether through the use of a network analyzer, packet sniffer or other device;
(f) Make any automated use of the Website, Services, or Kickask Materials, or take any action that imposes or may impose (in Kickask’s sole discretion) an unreasonable or disproportionately large load on the infrastructure for the Website, Services or Kickask Materials;
(g) Bypass any robot exclusion headers or other measures Kickask takes to restrict access to the Website, Services or Kickask Materials or use any software, technology or device to send content or messages, scrape, spider or crawl the Website, Services or Kickask Materials or harvest or manipulate data;
(h) Use, facilitate, create, or maintain any unauthorized connection to the Website, Services or Kickask Materials, including, but not limited to: (a) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Website, Services or Kickask Materials; or (b) any connection using programs, tools or software not expressly approved by Kickask;
(i) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Website, Services or Kickask Materials, or to obtain any information from the Website, Services or Kickask Materials;
(j) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Website or Services;
(k) Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(l) Solicit or attempt to solicit personal information from other users of the Website, Services or Kickask Materials;
(m) Use our Website, Services or Kickask Materials to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
(n) Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use the Website, Services or Kickask Materials to send altered, deceptive, or false source-identifying information; or
(o) Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
5.3 General. In connection with your use of the Website, Services, and Kickask Materials, you shall not:
(a) Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
(b) Harm minors in any way;
(c) Impersonate any person or entity, including, but not limited to, Kickask personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) Make available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
(e) Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
(f) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
(g) Register for more than one Account or register for an Account on behalf of an individual other than yourself;
(h) Stalk or otherwise harass any other user of our Website, Services or Kickask Materials; or
(i) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
6. Investigations. Kickask may, but is not obligated to, monitor or review the Services and Content at any time. Without limiting the foregoing, Kickask shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Kickask does not generally monitor user activity occurring in connection with the Website, Services, Kickask Materials, or Content, if Kickask becomes aware of any possible violations by you of any provision of the Terms, Kickask reserves the right to investigate such violations, and Kickask may, at its sole discretion, immediately terminate your license to use the Website, Services, or Kickask Materials, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
7. Interactions with Other Users.
7.1 User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that Kickask reserves the right, but has no obligation, to intercede in such disputes.
7.2 Content Provided by Other Users. The Website, Services, and Kickask Materials may contain User Content provided by other Users. Kickask is not responsible for and does not control User Content. Kickask has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk. Your interactions with other Users are solely between you and the other User and we are under no obligation to become involved. You agree that Kickask will not be responsible for any liability incurred as the result of such interactions.
7.3 Release. If you have a dispute with one or more Users, you release Kickask and its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Kickask Parties”) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not now or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
8. Third Party Services.
8.1 Third-Party Websites & Ads. The Website, Services, and Kickask Materials may contain links to third-party websites (“Third Party Websites”) and advertisements for third parties (collectively, “Third Party Websites & Ads”). When you click on a link to a Third Party Website or Ad, we will not warn you that you have left our Website and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third Party Websites are not under the control of Kickask. Kickask is not responsible for any Third Party Websites & Ads. Kickask provides these Third Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Websites & Ads, or their products or services. You use all links in Third Party Websites & Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from which you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that these Terms are between you and Kickask and not with the App Store. Kickask, not the App Store, is solely responsible for the Website, Services, and Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application or Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third party terms of agreement (e.g., the App Store’s terms and policies) when using the Application and the Services. You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of these Terms and will have the right to enforce them.
9. Fees. We do not currently charge any fees to use our Website, Application or Services, but we reserve the right to charge fees for certain Services in the future.
10. Indemnification. You agree to indemnify and hold Kickask Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Website, the Application, or the Services; (c) your violation of the Terms; (d) your violation of any rights of another party, or (e) your violation of any applicable laws, rules or regulations. Kickask reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Kickask in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account or the Services.
11. Disclaimer of Warranties.
11.1 AS IS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WEBSITE, THE APPLICATION AND THE SERVICES IS AT YOUR SOLE RISK, AND THE WEBSITE, THE APPLICATION AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. HALLWAY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) THE HALLWAY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WEBSITE, THE APPLICATION OR THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE WEBSITE, THE APPLICATION OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEBSITE, THE APPLICATION OR SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE WEBSITE, THE APPLICATION OR THE SERVICES WILL BE CORRECTED.
(b) ANY CONTENT OR HALLWAY MATERIALS DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE WEBSITE, THE APPLICATION OR THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE WEBSITE, THE APPLICATION OR THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. HALLWAY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HALLWAY OR THROUGH THE WEBSITE OR THE HALLWAY MATERIALS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) From time to time, Kickask may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Kickask’s sole discretion. The provisions of this section apply with full force to such features or tools.
11.2 NO LIABILITY FOR CONDUCT OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT THE HALLWAY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE HALLWAY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.3 NO LIABILITY FOR CONDUCT OF OTHER USERS. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE WEBSITE, THE APPLICATION AND THE SERVICES. YOU UNDERSTAND THAT HALLWAY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE WEBSITE, THE APPLICATION OR THE SERVICES.
12. Limitation of Liability.
12.1 DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL HALLWAY PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, THE APPLICATION, THE SERVICES OR THE SITE CONTENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT HALLWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE WEBSITE, THE APPLICATION OR THE SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE WEBSITE, THE APPLICATION OR THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE WEBSITE, THE APPLICATION OR THE SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE OR THE SERVICES; OR (5) ANY OTHER MATTER RELATED TO THE WEBSITE, THE APPLICATION OR THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
12.2 CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL THE HALLWAY PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF: (A) THE AMOUNT RECEIVED BY HALLWAY AS A RESULT OF YOUR USE OF THE WEBSITE, THE APPLICATION AND THE SERVICES IN THE PRECEDING THREE (3) MONTHS PRIOR TO THE DATE ON WHICH YOU FIRST ASSERT THE CLAIM OR (B) TEN DOLLARS ($10.00).
12.3 USER CONTENT. THE HALLWAY PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
12.4 Information Verification. Kickask Parties may use various ways of verifying information that Users have provided. However, none of those ways are perfect, and you agree that Kickask and its suppliers will have no liability to you arising from any incorrectly verified information.
12.5 BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HALLWAY AND YOU.
13. Procedure for Making Claims of Copyright Infringement. It is Kickask’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Kickask by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Website, or the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Website or Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Kickask’s Copyright Agent for notice of claims of copyright infringement is as follows: Copyright Agent, Kickask Social Learning Network, Inc., 1106 Water Pointe Lane, Reston, Virginia 20194 or email@example.com.
14. Term and Termination.
14.1 Term. These Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Website, the Application, or any Services, unless terminated earlier in accordance with these Terms.
14.2 Prior Use. Notwithstanding the foregoing, if you used the Website, the Application, or any Services prior to the date you accepted these Terms, you hereby acknowledge and agree that these Terms commenced on the date you first used the Website, the Application, or the Services (whichever is earlier) and will remain in full force and effect while you use the Website, the Application, or any other Services, unless earlier terminated in accordance with these terms.
14.3 Termination of Services by Kickask. Kickask reserves the right to modify or discontinue the Website or any Services with or without notice to you. Kickask will not be liable to you or any third party should we exercise our right to modify or discontinue the Website and/or Services. Kickask, in its sole discretion, may immediately suspend or terminate any Services or your access to the Website and/or any Services at any time, for any reason, in our sole discretion, including if you have materially breached any provision of this Agreement, or if the Kickask is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful). You agree that all terminations for cause shall be made in Kickask’s sole discretion and that Kickask shall not be liable to you or any third party for any termination of your Account.
14.4 Termination of Services by You. If you want to terminate any Services provided by Kickask, you may do so by (a) notifying Kickask at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Kickask's address set forth below.
14.5 Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Kickask will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of these Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15.1 Violations. If Kickask becomes aware of any possible violations by you of the Terms, Kickask reserves the right to investigate such violations. If, as a result of the investigation, Kickask believes that criminal activity has occurred, Kickask reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Kickask is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on the Website, the Application, or in the Services, including Your Content, in Kickask’s possession in connection with your use of the Website, the Application, or the Services, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims that Your Content violates the rights of third parties; (4) respond to your requests for customer service; or (5) protect the rights, property or personal safety of Kickask, its Users or the public, and all enforcement or other government officials, as Kickask in its sole discretion believes to be necessary or appropriate.
15.2 Breach. In the event that Kickask determines, in its sole discretion, that you have breached any portion of these Terms, or have otherwise demonstrated conduct inappropriate for the Website, the Application, or the Services, Kickask reserves the right to:
(a) Warn you via e-mail (to any e-mail address you have provided to Kickask) that you have violated these Terms;
(b) Delete any of Your Content provided by you or your agent(s) to the Website, the Application, or the Services;
(c) Discontinue your registration(s) with the Website and/or any Services or Kickask community;
(d) Discontinue your access to or use of any Services;
(e) Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
(f) Pursue any other action which Kickask deems to be appropriate.
15.3 No Subsequent Registration. If your registration(s) with or ability to access the Website, the Application, or the Services, or any other Kickask community is discontinued by Kickask due to your violation of any portion of these Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Website, the Application, , the Services or any other Kickask community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those materials or Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Kickask reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
16. International Users. This Website can be accessed from countries around the world and may contain references to services and Content that are not available in your country. These references do not imply that Kickask intends to announce such services or Content in your country. The Website and Services are controlled and offered by Kickask from its facilities in the United States of America. Kickask makes no representations that the Website or the Services are appropriate or available for use in other locations. Those who access or use the Website or the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
17. General Provisions.
17.1 Electronic Communications. The communications between you and Kickask use electronic means, whether you visit the Website or send Kickask e-mails, or whether Kickask posts notices on the Website or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Kickask in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Kickask provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
17.2 Release. You hereby release the Kickask Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Website Users or third party websites of any kind arising in connection with or as a result of your these Terms or your use of the Website, the Application, or the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
17.3 Assignment. These Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Kickask’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.4 Force Majeure. Kickask shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.5 Dispute Resolution. If you believe that Kickask has not adhered to these Terms, please contact Kickask by emailing us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
17.6 Choice of Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Virginia, without giving effect to any conflict of laws principles that require the application of the law of a different state. You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts for the county in which Kickask’s principal place of business is located for any lawsuit filed against you by Kickask arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
17.7 Limitations Period. YOU AND HALLWAY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS, THE WEBSITE, THE SERVICES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
(a) Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, Kickask may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from Virginia law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that re applicable to your use of the Website and the Services.
(b) Any other Dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by arbitration in accordance with the JAMS Commercial Arbitration Rules (the “Rules”) and shall be administered by the Washington, D.C. office of JAMS (the “Administrator”). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be Washington, D.C., USA. The Dispute(s) shall be submitted to a single arbitrator (“Arbitrator”) chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator shall provide such list to the parties 10 days after request by either party. Should the parties be unable to agree on a choice of arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party shall bear its own attorney’s fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys’ fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator. The Arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 9 of this Agreement. Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by Virginia law or United States Federal law.
(c) By using the Website, the Application, or the Services in any manner, you agree to the above arbitration provision. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Kickask (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
17.9 Choice of Language. It is the express wish of the parties that these Terms and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
17.10 Notice. Where Kickask requires that you provide an e-mail address, you are responsible for providing Kickask with your most current e-mail address. In the event that the last e-mail address you provided to Kickask is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms, Kickask’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Kickask at the following address: Kickask Social Learning Network, Inc., 1106 Water Pointe Lane, Reston, Virginia 20194, Attn: CEO. Such notice shall be deemed given when received by Kickask by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.11 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.12 Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
17.13 Export Control. You may not use, export, import, or transfer the Kickask Materials except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Kickask Materials, and any other applicable laws. In particular, but without limitation, the Kickask Materials may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Kickask Materials, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Kickask Materials for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Kickask are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Kickask products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
17.14 Accessing and Download the Application from iTunes. The following applies to any Application accessed through or downloaded from the Apple App Store (“App Store Sourced Application”):
(a) You acknowledge and agree that (i) these Terms are concluded between you and Kickask only, and not Apple, and (ii) Kickask, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Kickask and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Kickask.
(d) You and Kickask acknowledge that, as between Kickask and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Kickask acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Kickask and Apple, Kickask, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
(f) You and Kickask acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof.
(g) Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.
17.15 Entire Agreement. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.