KickApps Terms of Service

1. Definitions.

1.1 “Administration Service” means the services and functionality hosted by KickApps and made available to You on or through KickApps’ “Affiliate Center” interface located at the KickApps site through which You may deploy, configure, customize, manage, administer, and control certain aspects of the User Service.

1.2 “Intellectual Property Rights” means patent, copyright, trademark, or trade secret rights.

1.3 “KickApps Technology” means (i) all of KickApps’ proprietary technology (including, but not limited to, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to You by KickApps in providing the Service; and (ii) all data, including text, audio, video, photos, software, written works of authorship and any other materials which are distributed, performed, or displayed in connection with the User Service (excluding Content).

1.4 “KickApps Site” means the KickApps web site located at www.kickapps.com and any successor URLs.

1.5 “Service” means the User Service and the Administration Service, collectively, along with the KickApps Site.

1.6 “Content” means any content or work of authorship submitted by Your Users or You that is transmitted, rendered, displayed or executed on or through the Service, including without limitation any text, postings, audio, sounds, video, photos, images, messages, code and materials..

1.7 “User Data” means, with respect to Your Users, personally identifiable registration data, usage history data, and demographic data collected through the Service.

1.8 “User Service” means the services and functionality hosted by KickApps and deployed by You on or through Your Website(s) for use by Your Users.

1.9 “Your User” means a user of Your Website(s) who assents to Your Terms of Use.

1.10 “Your Website” means a website owned and/or controlled by You as identified in the affiliate registration process.

2. Use of Service.

2.1 Overview of Rights

This Agreement applies to all use of the Service.  For the avoidance of doubt, it applies when, through the affiliate registration process, you register to be an affiliate of KickApps and use the Service to enable Your Website(s) with the User Service for the benefit of Your Users. This Agreement also applies to You when you use only that portion of the Service that is the KickApps Site.  Subject to the terms and conditions of this Agreement and your registration with KickApps through the affiliate registration process, KickApps hereby grants You the right to use the Administration Service and to make the User Service available to Your Users, on or through Your Websites, under the terms of this Agreement. Your right hereunder to use the Administration Service shall extend to any contractors acting on behalf of You pursuant to written agreement with you and in accordance with the terms of this Agreement, provided, however, that you shall be solely responsible for the acts and omissions of all such contractors, including without limitation, all use of the Service by such contractors. Implementation of the User Service on or through Your Website may be performed only in accordance with the terms and conditions of this Agreement and such other specifications as may be communicated by KickApps from time to time.

2.2 Restrictions and Limitations.

(a) You may not access the Service if You are a competitor of KickApps, unless You have the prior written consent of KickApps.  In addition, You may not access and/or use the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes.

(b) You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way, except as expressly authorized in this Agreement; (ii) modify (except as permitted through the Administration Service) or make derivative works based upon the Service; (iii) reverse engineer the Service and/or any component thereof; or (iv) access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions, or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.

(c) You shall not utilize any part of the Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable Laws (as defined below); (ii) send or store infringing, obscene, threatening, libelous, defamatory, pornographic, online gambling, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights or inconsistent with the generally accepted practices of the Internet community as reasonably determined by KickApps; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) attempt to gain unauthorized access to the Service or its related systems or networks; or (vi) enable, further, or participate in any unlawful activity.  You may not use any part of the Service in connection with providing any website or service that is aimed at, directed to, or marketed to children under the age of 13. You acknowledge and agree that if KickApps becomes aware or has reason to believe that You are engaging in any such prohibited activity, it has the right to immediately suspend and/or terminate your use of the Service.

(d) All rights not expressly granted to You are reserved by KickApps and its licensors.

3. Your Responsibilities.

You are responsible for all activity occurring through the use of the Service by You and Your Users. You represent that You shall abide by all applicable local, state, national, and foreign laws and regulations in connection with use of the Service, including, without limitation, those related to intellectual property and privacy (collectively, "Laws"). You shall report to KickApps immediately and use reasonable efforts to stop immediately any unlawful copying or distribution of Content that is known or suspected by You or Your Users.

You will not obscure or contravene or attempt to obscure or contravene any notices of or attribution to KickApps displayed within the Service that relate to KickApps' role as a service provider.  You acknowledge and agree that Your Website shall contain a terms of use agreement ("Your Terms of Use") that (i) contains certain non-modifiable language required by KickApps as set forth within the Administration Service in the End User Agreement configuration area located at: http://affiliate.kickapps.com/kickapps/affiliate/displayEndUserAgreement.kickAction and (ii) is otherwise at least as protective of KickApps as this Agreement.  You acknowledge that only those who have agreed to be bound by Your Terms of Use may submit any Content and/or User Data through the User Service. 

4. Advertising.

You may only place advertisements within the Service into those advertising slots controlled by You, if any, as such slots are explicitly designated within the Administration Service by KickApps in its sole discretion.  KickApps shall have the right to include  advertisements in all other areas of the Service and KickApps shall be the sole beneficiary of any revenues derived therefrom.  You may not alter, obscure, diminish, hide, or remove any such advertisements included by KickApps within the Service or change their position on web pages.

5. Your Information.

You agree to provide KickApps with Your complete and accurate contact information, including, without limitation, when completing the affiliate registration process. This information includes legal name or business name, street address, e-mail address, and name and telephone number of an authorized administrative contact. You agree to update this information within fifteen (15) days of any change to it. If the contact information You have provided is false or fraudulent, KickApps reserves the right to terminate Your access to the Service in addition to any other legal remedies. 

6. Content; Ownership.

As between You and KickApps, Content shall be the property of You.  You hereby grant to KickApps a worldwide, perpetual, royalty-free license to (i) reproduce, store, display, distribute and perform Content on or through the Service in order to provide the Service; (ii) to use and analyze the Content in furtherance of KickApps' internal business purposes; and (iii) disclose metrics regarding Content on an aggregated basis for marketing and business development purposes.

You acknowledge and agree that You have sole responsibility for ensuring that all Content submitted on or through the Service by You or Your Users is compliant with the terms and conditions of this Agreement, all other terms of use agreements, disclaimers and notices that may be displayed by KickApps on or through the Services, and all Laws ("Applicable Terms") and You shall actively monitor the activity of Your Users through the Administration Service in order to ensure that no such activity is in violation of any Applicable Terms.  You, and not KickApps, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Content, and KickApps shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Content.  KickApps reserves the right to, without notice, withhold, remove and/or discard Content not in compliance with the Applicable Terms, and to remove or disable the account of any of Your Users not in compliance with the Applicable Terms. 

7. User Data.

As between You and KickApps, all User Data shall be the property of You.  You hereby grant KickApps a worldwide, perpetual, royalty-free license to (i) reproduce, store, display, distribute and perform User Data on or through the Service in order to provide the Service; and (ii) to use and analyze the User Data in furtherance of KickApps' internal business purposes; and (iii) disclose the User Data and related metrics on an aggregated basis for marketing and business development purposes, including targeting advertisements through the Service, provided that such aggregated User Data does not identify any of Your Users individually.  You shall ensure that Your Terms of Use allows for the foregoing and shall indemnify, defend and hold KickApps harmless from and against any claims of your Users resulting from KickApps use of the User Data in accordance with the terms of this Section 7. 

8. Intellectual Property.

8.1 KickApps Intellectual Property.

KickApps and its licensors, partners, or affiliates, where applicable, shall own all right, title, and interest, including, without limitation, all Intellectual Property Rights in and to the KickApps Technology. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the KickApps Technology or the Intellectual Property Rights owned by KickApps. The KickApps name, the KickApps logo, and the product names associated with the Service are trademarks of KickApps, and no right or license is granted to use them. 

8.2 Feedback.

You hereby assign and agree to assign to KickApps all right, title, and interest in and to any enhancement requests, recommendations, suggestions, comments, evaluations, ideas, or other information relating to the Service (“Feedback”) provided by You to KickApps, including, but not limited to, all Intellectual Property Rights embodied in such Feedback.

8.3 Notice and Procedure For Making Claims of Copyright Infringement.

KickApps respects the Intellectual Property Rights of others.  KickApps does not, however, independently confirm that all Content made available through the Service is provided by a valid rights holder.   In the event that KickApps becomes aware that Content published on or through the Service has been provided by a person who is not a valid rights holder, KickApps may, in appropriate circumstances and at its discretion, disable and/or terminate the publication of such Content.   If you believe that your work has been copied or published in a way that constitutes copyright infringement, please provide KickApps' Copyright Agent the following information: 

(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

(b) a description of the copyrighted work or other intellectual property that you claim has been infringed;

(c) a description of where the material that you claim is infringing is located or found on the website or Service;

(d) your address, telephone number, and email address;

(e) a 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;

(f) a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. 

KickApps’ Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:

Goodwin Procter LLP
599 Lexington Avenue
New York, NY 10022
Attention: Jacqueline Klosek

With a copy to:

Kick Apps Corporation
29 W. 38th Street – 5th Floor
New York, NY 10018
Attention: DMCA Agent

9. Modification of Terms.

KickApps reserves the right to modify this Agreement or its policies relating to the Service and other Applicable Terms, at any time, effective upon posting of an updated version of this Agreement, policies and/or other Applicable Terms on the Service. You are responsible for regularly reviewing this Agreement and such policies, the current version of which shall be made available as set forth herein through the KickApps Site. If any change to this Agreement is not acceptable to You, Your sole remedy is to terminate Your use of the Service and any other rights under this Agreement. Any use of the Service after such publication shall constitute acceptance by You of such revised Agreement. 

10. Term and Termination.

10.1 Term.This Agreement commences upon Your acceptance of this Agreement by clicking “I Accept” in the sign-up process for the Service and shall continue until terminated (the “Term”).  Use of the Service is subject to compliance with this Agreement.  You acknowledge and agree that KickApps may terminate and/or suspend your access to any portion of the Service for any reason or for no reason at all, in KickApps’ sole discretion, without prior notice.  You may terminate this Agreement at any time by discontinuing Your use of the Service, including removal of any link or other mechanism by which the Service is implemented on Your Website.

10.2 Effects of Termination. Upon termination or expiration, Your right to access or use User Content shall immediately cease, and KickApps shall have no obligation to retain copies of any User Content or data of Your Users.  Upon termination or expiration of this Agreement, the following provisions will survive in full force and effect: 4, 5, 6, 7, 8, 10.2, 11, 12, 13 and 15, and any other clause or portion of a clause which, by its nature, is intended to survive termination or expiration of this Agreement.

11. Indemnification.

You shall indemnify and hold KickApps, its licensors, and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) any claim arising out of or relating to any User Content provided by You or any or Your Users, including without limitation any claim alleging that use of any User Content infringes or misappropriates the rights of, or has caused harm to, a third party; or (ii) any claim arising from the breach or violation by You or any of Your Users of any responsibilities, representations, covenants, or warranties under this Agreement and/or other Applicable Terms.

12. Disclaimer of Warranties.

You acknowledge and agree that by using the Service, you may be exposed to Content that is offensive, indecent, or objectionable.  You further acknowledge and agree that the Service and the Content may contain errors or omissions.  You acknowledge and agree that KickApps does not screen or review published Content on the Service to determine whether it contains false or defamatory material or material which is offensive, indecent, objectionable, or which contains errors or omissions.  Under no circumstances will KickApps be liable in any way for Content, including, but not limited to, for any defamation, falsehoods, errors, or omissions in any such content, or for any loss or damage of any kind incurred as a result of the use or publication of any such Content posted, emailed, or otherwise transmitted via the Service.  KickApps does not guarantee that any Content will be to your satisfaction. 

KICKAPPS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT.  KICKAPPS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  THE SERVICE AND ALL CONTENT ARE PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS.  KICKAPPS AND ITS LICENSORS HEREBY DISCLAIM (TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW) ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

KICKAPPS’ SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  KICKAPPS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

13. Limitation of Liability

IN NO EVENT SHALL KICKAPPS’ AGGREGATE LIABILITY ARISING WITH RESPECT TO OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS RECEIVED BY KICKAPPS AND ATTRIBUTABLE TO REVENUE GENERATED FROM USE OF THE USER SERVICE THROUGH YOUR WEBSITE, IF ANY, IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT UPON WHICH CLAIMS ARE BASED.  IN NO EVENT SHALL KICKAPPS AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE, IN THE CONTENT, EVEN IF THE KICKAPPS OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14. Force Majeure

In no event shall KickApps incur any liability to You or any of Your Users on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement to the extent such delay or failure is caused by events, occurrences, or causes beyond the control and without negligence of KickApps, including by not limited to acts of God, strikes, riots, acts of war, lockouts, earthquakes, fires and explosions.

15. General

This Agreement shall be governed by New York law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in New York, NY.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.  All notices to be delivered under this Agreement shall be sent via postal mail to the applicable party at the address notified by the applicable party in writing.  Notice shall be deemed to have been given forty-eight (48) hours after the mailing of the written notice. No joint venture, partnership, employment, or agency relationship exists between You and KickApps as a result of this agreement or use of the Service.  The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the waiving party in writing.  The section headings herein are included merely for convenience of reference, do not limit or affect any of the contents of this Agreement, and are not to be considered part of, or to be used in interpreting, this Agreement. KickApps may assign this Agreement at any time without prior notice to You. You may not assign this Agreement without the prior written consent of KickApps, which consent may be withheld by KickApps at its sole discretion.  Any purported assignment by You in violation of this section shall be void.  This Agreement, which incorporates the KickApps Privacy Policy comprises the entire agreement between You and KickApps and governs Your use of the Service, superseding all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter hereof.  

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