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Terms of Service

Last Updated: 09/12/24

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These Terms of Use (these "Terms") are a legally binding agreement between the party accepting these Terms as set forth in this paragraph ("Customer") and Kick Incorporated ("Kick," "we," "us," or "our") and applies to Customer's access and use of Kick's online services designed to support small businesses manage their bookkeeping (the "Services"). PLEASE READ THESE TERMS CAREFULLY. WHEN CUSTOMER MAKES A CLICK-THROUGH PURCHASE ON KICK'S WEBSITE OR OTHERWISE ACCESSES OR USES THE SERVICES, CUSTOMER IS AGREEING TO BE BOUND BY THESE TERMS. IF CUSTOMER DOES NOT AGREE WITH ANY OF THESE TERMS, CUSTOMER MAY NOT ACCESS OR USE THE SERVICES.

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Kick may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of the Services ("Supplemental Terms"). Any Supplemental Terms become part of Customer's agreement with Kick if Customer uses the applicable Services, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.

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Kick may make changes to these Terms. If Kick makes changes, Kick may provide Customer with notice of such changes, such as by sending an email, providing a notice through the Services, or otherwise. Unless Kick says otherwise in its notice, the amended Terms will be effective immediately, and Customer's continued use of the Services after Kick provides such notice will confirm Customer's acceptance of the changes. If Customer does not agree to the amended Terms, Customer must immediately stop using the Services. Any changes to these Terms will not apply to any dispute between Customer and Kick arising prior to the date on which Kick posted the updated Terms incorporating such changes or otherwise notified Customer of such changes.

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1.  Services

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Subject to Customer's compliance with the terms and conditions of these Terms, Kick grants Customer a limited, non-exclusive, revocable right to access and use the Services, solely for Customer's internal business purposes (the "Permitted Uses"). Customer may not resell, transfer, assign, or sublicense Customer's rights under these Terms to any third party or use the Services to run an outsourcing business or provide services for the benefit of any third party. Notwithstanding anything to the contrary in these Terms, (a) Kick may conduct maintenance on the Services from time to time without prior notice to Customer and (b) Kick may modify, limit, or entirely eliminate features of the Services from time to time at Kick's sole discretion, including due to limitations imposed on, or the unavailability of, Third-Party Services (as defined below).

 

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2.  Accounts and Eligibility

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  1. 2.1 Authorized Users. Kick may enable Customer to designate authorized Customer Personnel (as defined below) ("Authorized Users") to use the Services, and if so, only Authorized Users may use the Services.
  2. 2.2 Geographic Scope. Customer may only use the Services in jurisdictions authorized by Kick. The Services are currently authorized to be used only in the United States and are not intended to subject Kick to any non-United States jurisdiction or law. Customer represents and warrants that neither Customer nor any Customer personnel using the Services ("Customer Personnel") (a) will use the Services outside of the United States, (b) is located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a "terrorist supporting" country or (c) is on any of the U.S. government lists of restricted end users.
  3. 2.3 Customer Accounts. Customer must create an account to use the Services. Customer is responsible for use of the Services by Customer and Customer Personnel, their respective access to Services accounts, and all acts and omissions through Services accounts, as well as for use of the Services by any third party through Services access credentials of Customer or any Customer Personnel, whether authorized or not. Customer is solely responsible for implementing and maintaining security measures to safeguard Customer's and Customer Personnel's access credentials and to prevent use and disclosure of such credentials by unauthorized third parties. Customer will promptly notify Kick in writing of any unauthorized use of the Services or access credentials that comes to Customer's attention. Kick has no obligation to inquire about the authority of anyone using the account access credentials of Customer or any Customer Personnel.‍
  4. 2.4 Representations and Warranties. Customer represents and warrants that (a) Customer is an entity established or incorporated in the United States, (b) Customer is validly existing and in good standing under the laws of the place of its establishment or incorporation, (c) Customer has full corporate power and authority to execute, deliver and perform its obligations under these Terms, (d) the person entering into these Terms on Customer's behalf has been duly authorized and empowered to enter into these Terms, and (e) these Terms are valid, binding and enforceable against Customer and all Customer Personnel in accordance with their terms.

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3.  Customer Obligations

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  1. 3.1 Restrictions. Customer agrees that the Services contain trade secrets and other valuable proprietary information belonging to Kick. Customer will not, and will ensure that Customer Personnel do not: (a) alter, copy, modify, translate, or make derivative works of, or permit the alteration, copying, modification, translation, or making derivative works of, the Services or any component thereof; (b) attempt to derive the source code or object code for the Services, including by reverse engineering, decompiling, disassembling, or similar means; (c) seek to acquire any ownership interest in or to the Services; (d) license, offer, sell, resell, transfer, lease, or otherwise distribute the Services or attempt any of the foregoing; (e) remove, alter, or obfuscate any copyright, trademark, or other proprietary rights notices included with the Services; (f) access or use the Services in order to design, develop, or build a similar product or competitive product or otherwise use the Services for any purpose other than the Permitted Uses; (g) enable access to the Services by anyone not authorized to use the Services; (h) develop any scripts or software applications that interact with or integrate with the Services unless first authorized in writing by Kick; (i) circumvent or modify any security technologies designed to prevent unauthorized access to the Services; (j) frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Kick without Kick’ express written consent; or (k) use any meta-tags or any other "hidden text" utilizing any of Kick's names, trademarks, or service marks without the express written consent of Kick. 
  2. 3.2 Acceptable Use. Customer will not, and will ensure that Customer Personnel do not, whether by use of the Services or otherwise: (a) infringe on, violate, dilute, or misappropriate the intellectual property rights, rights of publicity, privacy rights, or other rights of any person; (b) engage in any fraudulent, unlawful, or abusive activities; (c) interfere with or attempt to interfere with or disrupt the integrity, security, functionality, or proper working of the Services or Kick's provision of services to other customers; (d) upload, store, send, or post any Customer Data or other information, data, or material that (i) constitutes or contains a virus, trojan horse, worm, or any malicious or harmful software program or code, (ii) constitutes or contains content that is spam, defamatory, inflammatory, trade libelous, threatening, abusive, hateful, harassing, obscene, pornographic, lewd, or indecent, or (iii) fails to comply with applicable laws, rules, or regulations ("Laws"); (e) attempt to discover, access, read, alter, destroy, or damage any programs, data, or other information stored on or in connection with the Services; or (f) otherwise engage in conduct or behavior that Kick finds objectionable in its sole discretion. 
  3. 3.3 Compliance With Laws. Customer will, and will ensure that all Customer Personnel, comply with all Laws in connection with Customer's and Customer Personnel's use of the Services. Customer acknowledges that all system hardware, system software, proprietary data, know-how, or other data or information (herein referred to as "Systems") obtained from Kick may be subject to the import and/or export control Laws of one or more countries and, accordingly, their import, export, re-export, and transfer may be restricted or prohibited. Customer agrees not to, and agrees to cause all Customer Personnel not to, directly or indirectly, import, export, re-export, transfer, or cause to be imported, exported, re-exported, or transferred, any such Systems to any destination, entity, or persons prohibited or restricted under any law or regulation, unless Customer has first obtained prior written consent of Kick and any applicable governmental entity, either in writing or as provided by applicable regulation, as the same may be amended from time to time. ‍
  4. 3.4 Equipment. Customer is solely responsible for obtaining and maintaining, at Customer's expense, all of the necessary telecommunications, computer hardware, mobile devices, software, services and Internet connectivity required to access the Services from the Internet.

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4.  Customer Data

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  1. 4.1 Ownership. Customer owns and retains all right, title, and interest in and to information, data, content, and/or files transmitted, uploaded, or stored in association with Customer's and Customer Personnel's use of the Services, including personal information ("Customer Data"), including all intellectual property rights therein. Customer acknowledges and agrees that Customer (not Kick) has control over Customer Data stored by operation of the Services. 
  2. 4.2 Use of Customer Data. Customer hereby grants Kick and its affiliates a worldwide, royalty-free, fully paid, transferable, assignable, sublicensable (through multiple tiers), perpetual, and irrevocable license to collect, host, use, access, view, store, copy, display, create derivative works of, delete, and otherwise process Customer Data (including providing Customer Data to applicable Third-Party Service Providers (as defined below) and others) to (a) provide, support, monitor, analyze, and improve the Services and improve Kick's other products and services, (b) communicate with Customer about its account and its Customer Personnel's accounts, (c) comply with Laws, including court orders, subpoenas, and requests or requirements for information made by regulatory or investigatory entities, (d) prevent fraud or misuse of the Services, (e) perform market research, (f) conduct product research and improvement and development of products and services by Kick, and/or (g) for any other lawful purpose. Kick may expand its use of Customer Data in its discretion if not precluded by Laws. Kick will not be required to transmit or provide Customer or any third party with Customer Data in any format except as required by Laws. 
  3. 4.3 Rights in Customer Data. Customer represents and warrants to Kick that Customer has the rights, licenses, and permissions necessary to grant the license and use rights in Section 4.2 and to otherwise provide Customer Data to Kick for use by Kick as contemplated by these Terms and the use of the Services by Customer and Customer Personnel. Customer is solely responsible for the content, accuracy, integrity, quality, and legality of Customer Data and for ensuring that it has given all notices and disclosures, and obtained all consents and permissions, necessary for (a) Customer and Customer Personnel to use the Services (including, without limitation, to send any communications or other information or materials via the Services), (b) Customer’s collection, use and disclosure of Customer Data, and (c) Kick to collect, use, and disclose Customer Data. Customer will not, and will ensure that Customer Personnel do not include in Customer Data or otherwise upload, post, reproduce, or distribute any information, software, or other material protected by copyright, privacy rights, or any other intellectual property rights without first obtaining the permission of the owner of such rights.
  4. 4.4 AI Tools. 
    1. (a) Use of AI Tools. Certain features of the Services may use artificial intelligence models, tools, and other technology (collectively, "AI Tools") to generate suggested text, information, results, images, and other materials (collectively, "Output") in response to Customer Data that Customer submits to the Services ("Input").  Both Input and Output are considered Customer Data under these Terms, and as between Customer and Kick, Customer owns all right, title, and interest in and to any Input and Output, to the extent protectable under Laws. The AI Tools may include artificial intelligence and other tools and technologies provided by third parties, and Customer acknowledges and agrees that (i) Customer's use of the AI Tools may involve access to Customer's Inputs and Outputs by Kick and/or such third parties and that such access may be occur pursuant to agreements Customer enters into with those third parties, rather than or in addition to these Terms, (ii) such tools and technologies are Third-Party Services and the providers thereof are Third-Party Service Providers and, as such, are subject to the terms and disclaimers in Section 10, and (iii) Customer consents and authorizes Kick to share any information Customer provides it with such third parties.
    2. (b) Output. Customer understands that due to the nature of the AI Tools, Output Customer generates may not be unique, and it is possible that the AI Tools may generate the same or similar Output for other users (including, without limitation, if the Inputs are similar). Customer acknowledges that the use of such AI Tools may affect Customer's ability to obtain or enforce intellectual property rights in or to the Output.
    3. (c) Acknowledgement Regarding Hallucinations. CUSTOMER ACKNOWLEDGES THAT ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING TECHNOLOGIES ARE RAPIDLY EVOLVING AND MAY PRODUCE OUTPUT THAT IS INACCURATE, UNRELIABLE, INAPPROPRIATE, INFRINGING, OR OTHERWISE UNSUITABLE OR THAT DOES NOT MEET CUSTOMER'S EXPECTATIONS.‍
    4. (d) Additional Acknowledgements. Without limiting the other restrictions or provisions of these Terms, Customer agrees not to use the AI Tools or resulting Output in a manner that may infringe upon or violate the rights of any third party, violate any Laws, or result in the Services being classified as "high risk" or in an analogous manner under Laws relating to artificial intelligence and Customer acknowledges and agrees that (i) Customer is solely responsible for vetting and evaluating the accuracy, appropriateness, legality, and suitability for Customer's use of any Output before using it, including evaluating whether such use will infringe upon or violate the rights of others, (ii) Customer assumes all risk associated with Customer's use of the AI Tools and the resulting Output, and (iii) Kick will have no liability for such use. Customer also acknowledges and agrees that Kick and any third parties who provide any artificial intelligence technologies used to provide the AI Tools may access and use Customer's Input, Output and other Customer Data in order to train, improve, and develop such technologies and the Services and for other research and development purposes.

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5.  Intellectual Property Rights

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  1. 5.1 Ownership by Kick. Subject to the use rights granted under these Terms, as between the parties, Kick owns and retains all right, title, and interest in and to the Services and any improvements, modifications, enhancements, or derivatives of the foregoing, all work product (including any software) and deliverables created, and all intellectual property rights relating to any of the foregoing. These Terms do not convey to Customer any rights of ownership in or related to the Services, work product, or deliverables. Except for the rights expressly granted in these Terms, no other rights are granted to Customer in, to, or under Kick's intellectual property rights, whether by implication, estoppel, waiver, or otherwise. ‍
  2. 5.2 Usage Data. Notwithstanding anything to the contrary in these Terms, Customer agrees that Kick may generate, collect, store, use, transfer, and/or disclose to third parties information gathered, prepared, computed, originated, or stored by Kick resulting from the use or provision of the Services, including information derived from or based on Customer Data ("Usage Data") (a) to perform data analytics, (b) to monitor, improve, and support the Services, (c) to design, develop, and offer Kick products and services, and (d) for any other lawful purpose. Kick owns and retains all rights to Usage Data, and no rights are granted to Customer, whether by implication, estoppel, waiver, or otherwise in or to any Usage Data. Kick has no obligation to provide or make any Usage Data available to Customer.

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6.  Fees and Payment Terms

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  1. 6.1 General. Customer will pay Kick all fees and amounts charged by Kick for use of the Services (collectively, the "Fees") in accordance with this Section 6. ‍
  2. 6.2 Payment to Kick. Customer will pay all Fees by (a) check, (b) bank wire transfer in immediately available funds to an account designated by Kick, or (c) credit or debit card via an authorized payment processor. If by credit or debit card, Customer authorizes Kick (or its payment processor) to charge Customer's credit or debit card number provided to Kick and represents and warrants that Customer is authorized to use and have Fees charged to that credit or debit card. Unless otherwise communicated in writing by Kick, all payments pursuant to these Terms: (i) are nonrefundable; (ii) will be made in U.S. Dollars; and (iii) are exclusive of taxes and duties, which will be paid solely by Customer (other than taxes based on Kick's net income). All Fees are payable without setoff, counterclaim, deduction, recoupment, or withholding of any kind for amounts owed or purportedly owed by Kick under these Terms, applicable law, or otherwise. The terms of payment specified herein may be subject to Kick's approval of Customer's credit, and Kick may at any time revise the specified terms of payment to require payment in advance. Kick may assess a late charge of the lesser of 1.5% per month or the maximum rate allowed under applicable law for all late payments. Customer will reimburse Kick for all costs and expenses (including reasonable attorneys' fees) incurred by Kick in collecting any past due amounts.

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7.  Term, Termination, and Suspension

  1. 7.1 Term. The term of these Terms commences on Customer's acceptance of these Terms and, unless either party terminates Customer's access to the Services as set forth in this Section 7, continues until the expiration or termination of the stated term (a) on Kick's website in connection with Customer's purchase or (b) as otherwise communicated to Customer by Kick in connection with Customer's purchase.  
  2. 7.2 Termination. 
    1. (a) Non-Renewal. If automatic renewal applies, either party may terminate Customer's access to the Services (and, therefore, these Terms) by issuing written notice of non-renewal at least 30 days prior to the expiration of the then-current term. 
    2. (b) Termination for Cause. Either party may terminate Customer's access to the Services (and, therefore, these Terms) upon written notice to the other party (i) if such other party commits a material breach of these Terms and fails to cure such breach within 30 days of having received noticed of the breach or (ii) immediately if the other party becomes insolvent, makes an assignment for the benefit of its creditors, appoints a receiver for the whole or part of its assets, if there is a filing of voluntary bankruptcy petition by such other party or the filing against such other party of an involuntary bankruptcy petition that is not stayed or dismissed within 60 days, or there is an issuance of any order or the passing of a resolution for the winding-up of such other party's business. 
  3. 7.3 Immediate Termination; Suspension. Notwithstanding Section 7.2, Kick may suspend or limit access to the Services, or immediately terminate Customer's access to the Services (and, therefore, these Terms), at any time: (a) if Kick determines or suspects that Customer or any Customer Personnel are using the Services in violation of Laws or in connection with any fraudulent activity; (b) if Kick determines or suspects that Customer's or any Customer Personnel's use of the Services adversely affects or interferes with the normal operation of the Services or any service to others; (c) if Kick is prohibited by an order of a court or other governmental agency from providing the Services; (d) for Customer's non-payment of any Fees due and payable to Kick hereunder; (e) if Kick believes there exists a security incident that threatens the security of the Services or any related data; or (f) for any other reason in Kick's reasonable discretion. KICK WILL HAVE NO LIABILITY FOR ANY DAMAGES, LIABILITIES, OR LOSSES AS A RESULT OF ANY SUSPENSION, LIMITATION, OR TERMINATION OF CUSTOMER'S USE OF THE SERVICES IN ACCORDANCE WITH THIS SECTION.‍
  4. 7.4 Effect of Expiration or Termination. Upon any expiration or termination of these Terms, all unpaid Fees (including any Fees payable for the remainder of Customer's subscription to the Services) will become immediately due and payable. No refunds will be given on early termination, including any refunds for any pre-paid amounts, regardless of the reason for such termination. All rights granted to Customer under these Terms and Kick's obligations will immediately cease, and Customer will stop accessing or using the Services, except that the restrictions on Customer's use of the Services (including those set forth in Sections 1 and 3), the allocation of responsibility and liability for Customer's use of the Services (including as set forth in Sections 1 and 3), and the following provisions will survive: Sections 4 (Customer Data); 5 (Intellectual Property Rights); 6 (Fees and Payment Terms); 7.4 (Effect of Expiration or Termination); 8 (Confidentiality); 9 (Indemnification); 10 (Disclaimers); 11 (Limitation of Liability); 12 (Arbitration); and 13 (General Provisions).

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8.  Confidentiality

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  1. 8.1 Protection. "Confidential Information" means information disclosed by Kick to Customer, or accessed by Customer, that is not generally known to the public and is marked as confidential or proprietary, or which, under the circumstances ought to be treated as confidential. Usage Data is Confidential Information of Kick. Customer: (a) will protect Confidential Information from unauthorized disclosure using at least a reasonable degree of care; (b) will not disclose Confidential Information to any third party; and (c) will not use the Confidential Information for any purpose other than as expressly permitted in these Terms. 
  2. 8.2 Return. After any expiration or termination of these Terms, or at any time upon request from Kick, Customer will immediately return or destroy (at Kick's sole direction) all materials or media containing any Confidential Information, including all copies thereof, and will certify in writing to Kick that all such Confidential Information has been returned or destroyed. 
  3. 8.3 Injunctive Relief. Customer expressly acknowledges and agrees that no adequate remedy exists at law for an actual or threatened breach of this Section 8 and that in such event Kick will be entitled to seek and obtain immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  ‍
  4. 8.4 Feedback. Customer or Customer Personnel may from time to time voluntarily provide suggestions, enhancements, recommendations, requests for features or functionality, comments, or other feedback to Kick regarding Kick and/or the Services ("Feedback"). Feedback, even if designated as "confidential" or "proprietary" by Customer, will not create any confidentiality or other obligation for Kick, and Customer hereby grants Kick a royalty-free, fully paid-up, worldwide, transferable, sublicensable, irrevocable, perpetual license to copy, disclose, use, or otherwise exploit such Feedback for any purpose.

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9. Idemnification

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Customer will indemnify and hold Kick and its affiliates, and its and their officers, employees, and agents harmless against any damages, liabilities, losses, costs, or expenses (including reasonable attorneys' fees) arising from or in connection with (a) Customer's access to or use of the Services, (b) Customer Data, and/or (c) Customer's or any Customer Personnels' breach or alleged breach of these Terms (each, an "Indemnifiable Claim"). Additionally, Customer will, at Kick's sole election, defend Kick from any Indemnifiable Claims. If Kick directs Customer to defend an Indemnifiable Claim, then (i) Kick has the right to approve the counsel Customer selects to defend the Indemnifiable Claim and (ii) Kick may also have its own counsel participate in the defense and settlement of the Indemnifiable Claim at Customer's expense. Kick may also exclusively retain control of the defense of an Indemnifiable Claim. Customer will not settle an Indemnifiable Claim without Kick's written consent.

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10.  Disclaimers

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  1. 10.1 Kick Disclaimers. THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, KICK HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICES AND THIRD-PARTY SERVICE PROVIDERS, WHETHER STATUTORY, EXPRESS, IMPLIED, OR THROUGH A COURSE OF DEALING, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. KICK DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL OPERATE UNINTERRUPTED, BE ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED. KICK MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING TIMELINESS, ACCURACY, PERFORMANCE, QUALITY, RELIABILITY, OR COMPLETENESS OF ANY INFORMATION OR RESULTS OBTAINED OR DERIVED THROUGH THE USE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT KICK IS NOT CUSTOMER'S BROKER, LAWYER, INTERMEDIARY, AGENT, OR ADVISOR AND HAS NO FIDUCIARY RELATIONSHIP OR OBLIGATION TO CUSTOMER REGARDING ANY ACTS OR OMISSIONS CUSTOMER TAKES IN CONNECTION WITH THE SERVICES OR WHEN USING THE SERVICES, AND THAT KICK IS NOT A MONEY TRANSMITTER NOR REGISTERED OR LICENSED BEFORE ANY GOVERNMENTAL AUTHORITY, INCLUDING, WITHOUT LIMITATION, THE U.S. SECURITIES AND EXCHANGE COMMISSION. NEITHER OUR COMMUNICATIONS NOR ANY INFORMATION THAT WE PROVIDE TO CUSTOMER ARE INTENDED AS, OR SHOULD OR WILL BE CONSIDERED OR CONSTRUED AS, ANY ADVICE OR RECOMMENDATION, INCLUDING, WITHOUT LIMITATION, ANY ADVICE OR RECOMMENDATION CONCERNING ANY REGISTERED OR UNREGISTERED COMMODITY, SECURITY, OR OTHER ASSET OR INTEREST.
  2. 10.2 Third-Party Services. 
    1. (a) Definition. Certain Services or features thereof may rely on, interoperate with, or otherwise utilize or leverage products and/or services provided by third parties (such services, "Third-Party Services" and the providers of such services, "Third-Party Service Providers").
    2. (b) Third-Party Terms; Disclaimer. Customer is, and all Customer Personnel are, solely responsible and liable for complying with all terms, conditions and policies imposed by Third-Party Service Providers on Third-Party Services ("Third-Party Terms"). Kick is not, and will not be deemed to be, a party to any Third-Party Terms, all of which are exclusively between Customer and the applicable Third-Party Service Provider(s). Kick does not make any warranties or guarantees with respect to Third-Party Services, including the performance or continued availability of Third-Party Services and Kick may (either itself or as required by the Third-Party Service Provider) limit or cease providing interoperation with any or all Third-Party Services (and, as a consequence, certain or all features of the Services may be limited or ceased) without entitling Customer to any refund, credit, or other compensation if, for example and without limitation, the Third-Party Service Provider ceases to make the Third-Party Service available for interoperation or use with the Services in a manner acceptable to us. Moreover, the performance of Third-Party Services (and Third-Party Service Providers) is outside Kick's control. KICK WILL NOT BE LIABLE FOR, AND KICK EXPRESSLY DISCLAIMS, ANY LIABILITY FOR LOSSES, COSTS, OR EXPENSES TO THE EXTENT CAUSED BY ANY THIRD-PARTY SERVICES OR THIRD-PARTY SERVICE PROVIDERS OR FOR CUSTOMER'S COMPLIANCE (OR NON-COMPLIANCE) WITH ANY APPLICABLE THIRD-PARTY TERMS, EACH OF WHICH ARE CUSTOMER'S EXCLUSIVE RESPONSIBILITY AND LIABILITY.

 

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11.  Limitation of Liability

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TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL (A) KICK OR ANY OF ITS SERVICE PROVIDERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR PERSONAL INJURY, PROPERTY DAMAGE, ERROR OR INTERRUPTION OF USE, LOSS, INACCURACY, OR CORRUPTION OF DATA, COVER, LOST PROFITS OR REVENUE, LOSS OF BUSINESS, OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES, REGARDLESS OF THE FORM IN WHICH THE ACTION IS BROUGHT (INCLUDING NEGLIGENCE), ARISING OUT OF OR RELATING TO THE RELATIONSHIP BETWEEN THE PARTIES (INCLUDING THESE TERMS), INCLUDING THE USE OR INABILITY TO USE THE SERVICES, WHETHER OR NOT KICK HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, OR (B) KICK'S TOTAL LIABILITY UNDER THESE TERMS, REGARDLESS OF LEGAL THEORY (INCLUDING NEGLIGENCE), EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, THE FEES PAID TO KICK BY CUSTOMER IN THE 3-MONTH PERIOD PRECEDING THE DATE ON WHICH THE FIRST CLAIM AROSE AND ASSOCIATED WITH THE SPECIFIC SERVICES PROVIDED. MULTIPLE CLAIMS WILL NOT EXPAND THESE LIMITATIONS. THE PARTIES ACKNOWLEDGE THAT THIS SECTION 11 REFLECTS THE AGREED UPON ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT NEITHER PARTY WOULD ENTER INTO THESE TERMS WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THIS LIMITATION ON LIABILITY WILL APPLY DESPITE THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH IN THESE TERMS.

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12.  Arbitration

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If any dispute between the parties arising under or relating to these Terms (a "Dispute") is not resolved through negotiation or mutual agreement, the parties agree to submit the Dispute to arbitration under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") in English in San Francisco, California, before one neutral arbitrator who may be a national of any party and who shall be a member of the AAA's Large Complex Case Panel. Any issues about the arbitrability of a Dispute will be determined by the arbitrator. All documents and information relevant to the Dispute in the possession of any party will be made available to the other party not later than 60 days after the demand for arbitration is served, and the arbitrator may permit such depositions or other discovery deemed necessary for a fair hearing. The arbitrator will have the power to require discovery of third parties (including testimony and documents) to the fullest extent allowed by federal law or the laws of the State of California. The hearing may not exceed two days. The arbitrator’s award will be rendered within 120 days of the demand. The arbitrator may award interim and final injunctive relief and other remedies but may not award damages limited in Section 11 above whether under contract, tort, statute, or any other basis for liability unless they are required by statute as determined by the arbitrator. No class arbitration will be allowed, but other parties may be joined as necessary to resolve the Dispute. No time limit herein is jurisdictional. Any award of the arbitrator (including awards of interim or final remedies) may be confirmed or enforced in any court having jurisdiction. Notwithstanding anything to the contrary in this Section 12, Kick may, at any time, bring court proceedings or claims against Customer (a) solely as part of separate litigation commenced by an unrelated third party or (b) solely to obtain preliminary or permanent injunctive relief. In the case of contradiction between the provisions of this Section 12 and the Commercial Arbitration Rules of the AAA, this Section 12 will prevail. The limitations on remedies described above may be deemed inoperative to the extent necessary to preserve the enforceability of the agreement to arbitrate. If any provision of this agreement to arbitrate is held invalid or unenforceable, it will be so held to the minimum extent required by law and all other provisions shall remain valid and enforceable.

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13.  General Provisions

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  1. 13.1 Entire Agreement. These Terms constitute the entire understanding of the parties with respect to their subject matter and supersede all prior or contemporaneous proposals, understandings, and agreements. If Customer provides Kick with any other terms or conditions (including, without limitation, any terms or conditions that appear on any purchase order or other form document), such terms and conditions will be of no force or effect. 
  2. 13.2 Assignment. Customer may not assign or transfer these Terms or any of Customer's rights or obligations under it without Kick's prior written consent. Kick may freely assign these Terms. Any attempted assignment in violation of this paragraph will be null and void. Subject to the foregoing, these Terms are binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Kick may subcontract the Services.
  3. 13.3 Severability. If a court finds any term of these Terms, other than Section 12, to be invalid or unenforceable, that term will be enforced to the maximum extent permissible so as to reflect the parties’ intent, and the remainder of these Terms will remain in full force and effect.
  4. 13.4 Waiver. Either party's delay or failure to exercise any right under these Terms or any law does not mean a party waives that right or any other rights under these Terms in the future. No waiver of any provision of these Terms, or any rights or obligations of either party under these Terms, will be effective except pursuant to a written instrument signed by the party against whom the waiver is sought. 
  5. 13.5 Independent Contractors. Nothing contained in these Terms will be construed to create a joint venture or partnership between the parties. Neither party is authorized as an agent or legal representative of the other party. Neither party will have the right or authority to bind or create any obligation on the other party.
  6. 13.6 Notices. By using the Services, Customer agrees (a) to receive communications (including any communications that are required to be issued in writing hereunder) electronically, including via email, (b) that any such electronically-issued communications will satisfy any legal communication requirements, including those that require notices to be in writing, (c) that, without limiting Kick's notification rights in the third introductory paragraph of these Terms, Kick may issue notices to the email or other address provided by Customer to Kick, and (d) that such notice will be effective on delivery. Notices to Kick, including termination notices, must be delivered to support@kick.co or by certified mail to Kick, Inc, 548 Market StPMB 195147 an Francisco, California 94104-5401 US. Such notice will be effective on receipt.
  7. 13.7 Force Majeure. Kick is excused from performance of these Terms and will not be liable for any delay in whole or in part caused by any event outside of its control.  
  8. 13.8 No Third-Party Beneficiary. Nothing contained in these Terms will be deemed to create, or be construed as creating, any third-party beneficiary right of action upon any third party in any manner whatsoever.  
  9. 13.9 Governing Law and Venue. These Terms will be governed in all respects in accordance with the laws of the State of California, without regard to conflict of law principles that would cause the laws of any other jurisdiction to apply. Except as set forth in Section 12, Customer expressly agrees that federal and state courts located in San Francisco, California will have exclusive jurisdiction over any Dispute raised by Customer. Customer expressly consents to personal jurisdiction in any such court and hereby irrevocably waives any objection to or claim of lack of jurisdiction or forum non conveniens.
  10. 13.10 Publicity. Customer consents to Kick's use of Customer's name and logo on the Kick website and on Kick's promotional, investor, and marketing related materials, identifying Customer as a customer of Kick and describing Customer's use of the Services.‍
  11. 13.11 Interpretation. The headings of these Terms are for reference only and will not be used to interpret the meaning of these Terms. Any reference to "includes" or "including" will be understood to be exemplary and not limiting and followed by "but not limited to." Each party has had the opportunity to review these Terms with legal counsel, and there will be no presumption that ambiguities will be construed or interpreted against the drafter.

Privacy

Last Updated: 09/12/24

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At Kick, Inc. (“Kick”, “we”, “us”, or “our”), we are committed to protecting your personal information and your right to privacy. We want you to be fully informed about the information we collect, how it is used, shared, and protected, and the choices you have with it and explain the privacy and data practices at Kick. 

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This privacy policy (the “Policy”) applies to all information collected through our website located at https://kick.co (the “Website”) and/or any related services, sales, marketing or events (we refer to all of these collectively in this Policy as the (collectively, "Services"). 

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If there are any terms in this Policy that you do not agree with, you should immediately discontinue use of our Services. If you have any questions or concerns about our disclosed practices with regards to your personal information, please contact us at privacy@Kick.co.

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1. When We Collect Personal Information

We collect personal information when:

  • You sign up for our Services.
  • You visit or interact with our Services, including by uploading any company-specific information.
  • You inquire about our Services, engage with our support team or otherwise communicate with us.
  • You view or interact with our emails or other communications.


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2. Types of Personal Information We Collect

‍We collect the following categories of personal information:

  • Information you provide directly to us:
    • Information when you register for an account, including if we offer you the ability to sign in with third party account credentials (eg; Google). 
    • Information from your interactions with our support team or inquiries into our Services, which may include providing us with your name, work or personal email, phone number, company name, position title, website, social media links, and time zone.
    • Our website offers you the ability to purchase our Services, including providing us with your credit card and billing information.   
    • Any company data you upload to our Services that may contain personal information, such as any information associated with company employees, contractors, or partners.  
  • Information we automatically collect during your visit to our Website:
    • Information about your use of our Services in order to personalize your user experience. 
    • Services form entry or uploaded content. We do not intentionally collect personal information from users who upload financial or related bookkeeping information through our website for use with our Services. However, certain personal information may be provided through our Services which may be collected automatically through our systems.  
    • Website and mobile device metadata and analytics, including IP address, device information, date/time of visits, new or returning visits, products viewed, page response times, URL clickstreams, how long you stay on our pages, what you do on those pages.
    • We may use cookies, beacons, pixel tags, and other similar technologies to collect additional information automatically as you interact with the Services, to personalize your experience with our Services, and to measure the performance of our advertising and marketing efforts. Learn more about this collection in the ‘Cookies and Tracking Technologies’ section below.
  • Information from third parties:
    • When you interact with our accounts on LinkedIn or potentially other third party services, we may collect certain information that you or the platform make available to us such as Website metadata analytics (above), your referral traffic to our Website, or custom website interactions.
    • We may also engage third parties to provide additional information about business professionals who are interested in our Services, engage with our website, or interact with us on social media.  

Our Website and Services are designed for business professionals. We do not intentionally collect any personal information from minors under the age of 16. If you believe we have obtained personal information associated with children, please contact us at privacy@Kick.co and we will delete it.

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3. How We Use Your Information

‍We use the personal information that you give and we collect for the following purposes:

  • To authenticate and secure your account, including through Google Sign in (in compliance with their API Services User Data Policy).  
  • To provide our Services, including web software for our Customers.  This may include use of artificial intelligence software to personalize your user experience.  
  • For customer support by responding to your issue reports, questions or feedback.
  • To improve or troubleshoot any issues with our Services. 
  • To communicate with you, such as sending you email or SMS updates about new features, products, and services. 
  • To comply with our agreements or policies.
  • For other business and legal purposes, such as to detect and prevent fraud, to collect amounts owing to us, and to maintain business records.
  • With your consent.

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4. How We May Disclose Personal Information

We may disclose your information with your consent. We may also share your information with our corporate affiliates, as well as vendors or service providers who:

  • Process credit card or other payments and enable subscription Services. 
  • Help us communicate with you, including through email marketing.
  • Manage and optimize our Website and Services, including website and mobile analytics providers. 

In addition:

  • We may disclose your personal information in order to: 
    • Protect the legal rights of our company, our employees, our agents, and our affiliates;
    • Protect the safety and security of our customers or Website visitors;
    • Detect and protect against fraud;
    • Comply with law or legal process.
  • We may disclose your personal information as part of a business transition.
    • We may also share your personal information with prospective purchasers exclusively to evaluate the proposed transaction; and
    • We may also share your personal information with another company that buys the assets or stock of Kick. That company may use and disclose personal information for purposes similar to those described in this Privacy Policy.

In addition, we may process or disclose de-identified, aggregate, or anonymous information about our Website visitors for any purpose. These processing activities may include use of artificial intelligence software for training purposes, including use of software provided by external parties, but these disclosures will not include any personal information processed in conjunction with our Services.  

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5. Your choices about your information

  • Access the personal information we maintain about you.
  • Delete the personal information we maintain about you, unless such information is necessary for compliance with our legal or regulatory obligations.
  • Correct inaccurate personal information we maintain about you.
  • Opt-Out of certain uses of your personal information. You can opt out of:
    • Email marketing: you may unsubscribe to our commercial email list by following the instructions provided in the email. 

You can exercise these choices by contacting Kick at privacy@kick.co.

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6. Online Tracking Technologies and How To Opt Out

‍Like many companies, we use cookies, pixels, web beacons, and other tracking technologies to collect information about your browsing activities, your interactions with websites and apps, and potentially to serve tailored ads. There are a number of ways to opt out of having your online activity and device data collected through these Services, which we summarize below:

  • Blocking Cookies In Your Browser. Most browsers let you remove or reject cookies, including cookies used for interest-based advertising. To do this, follow the instructions in your browser settings. Many browsers accept cookies by default until you change your settings. For more information about cookies, including how to see what cookies have been set on your device and how to manage and delete them, visit www.allaboutcookies.org.
  • Advertising Industry Opt-Out Tools. You can also use these opt-out options to limit use of your information for interest-based advertising online or in apps by visiting http://optout.aboutads.info.
  • With Each of Our Vendors Individually. The following advertising partners offer opt-out features that let you opt-out of use of your information for interest-based advertising.   Please note that because these opt-out mechanisms are specific to the device or browser on which they are exercised, you will need to opt out on every browser and device that you use.

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Third Party Advertising Services

Google - Google Advertising Opt Out

LinkedIn - LinkedIn Privacy Preferences 

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Analytics

Google Analytics - Google Privacy

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7. U.S. State-Specific Notice

Kick discloses the categories and types of personal information collected and disclosed in the sections above. Kick does not ‘sell’ or ‘share’ personal information for monetary consideration, but discloses and provides you with the right to opt-out of the third party advertising cookies provided in the previous section as they may be classified as a ‘sale or share’ by U.S. state privacy laws. Kick does not process any information deemed ‘sensitive’ under state privacy laws.

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8. Security and Retention

We have implemented reasonable security measures designed to protect your personal information from unauthorized access and disclosure. It is important that you understand, however, that no website, Internet-connected device or online platform is completely secure. We cannot anticipate all potential misuse of your information, and as a result, cannot guarantee the security of any information you transmit to us.

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We generally retain customer personal information for as long as necessary to provide our Services. We may also retain personal information if required by law, or for our legitimate interests, such as abuse detection and prevention, and defending ourselves from legal claims.  Residual copies of personal data may be stored in backup systems for a limited period as a security measure to protect against data loss. 

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For more information, please email us at privacy@kick.co.

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9. Links On Our Services

‍Our Services may contain links to other websites or services. We do not control what information you provide, or is collected by these third-party websites. We encourage you to read the privacy policies or statements of the other websites you visit.

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10. Contact information

‍We may revise this Policy from time to time. Review it occasionally so that you keep up-to-date on our most current practices. We will put the effective date of the latest version at the top of each Policy.

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11. Contact information

If you have any questions about our privacy or security practices, or if you would like to request access to or correction of your personal information, you can contact Kick by mail, telephone, or e-mail: 

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Kick, Inc.

548 Market St PMB 28903, San Francisco California 94104

privacy@kick.co