Dream Kicks LLC ("Kicktronics” or "we") provides a mobile marketplace for buying and selling new and used items (the “Services”) through our websites (“Site”), accessible at “https://www.Kkcktronics.com” and our mobile applications (“Application”). Through our Site, Application and Services, users can list items for sale by taking and uploading photos, entering a sale price, as well as the size and condition of the item (“Sellers”). Users can also browse listings by Sellers and can choose to purchase the described item by entering in their payment and billing information (“Buyers”).
KEY TERMS RELATED TO CONTENT
"Kicktronics Content" means all Content that Kicktronics makes available through the Site, Application and Services, including any Content licensed from a third party, but excluding Registered User Content.
"Collective Content" means Registered User Content and Kicktronics Content.
"Content" means text, graphics, images, music, software, audio, video, information or other materials.
"Registered User" means a person who completes Kicktronics's account registration process, as described under "Account Registration" below.
"Registered User Content" means all Content that a Registered User posts, uploads, publishes, submits or transmits to be made available through the Site, Application or Services.
Certain areas of the Site (and your access to or use of certain Services or Collective Content) and Application may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application, Services or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Application, Services or Collective Content.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE, APPLICATION OR THE SERVICES OR BY POSTING ANY CONTENT ON THE SITE OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT.
Kicktronics reserves the right, at its sole discretion, to modify, discontinue or terminate the Site, Application or Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site and in our application. We may also or provide you with notice of the modification. We will also update the "Last Updated Date" at the top of the terms of service page of the Site. By continuing to access or use the Site or the Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and the Services.
The Site, Application or Services are intended solely for persons who are 13 years of age or older. Any access to or use of the Site, Application or Services by anyone under 13 years of age is expressly prohibited. By accessing or using the Site, Application or Services you represent and warrant that you are 13 years of age or older.
In order to access certain features of the Site, Application or Services and to post any Registered User Content on the Site, Application or through the Services, you must register to create an account ("Account") and become a "Registered User." To become a Registered User you must be at least 913 years old. Any registration by anyone under 913 is void. By completing the registration process to create an Account, you represent and warrant that you are 139 or older. During the registration process, you will be required to provide certain information and you agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete.
Kicktronics reserves the right to suspend or terminate your Account for any reason at its discretion, including, but not limited to, violating terms of his agreement or determining that you have provided if any information provided during the registration process or thereafter proves to be inaccurate, out date, false, misleading, or not current or incomplete information about yourself or a product listed in the mobile marketplace. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Kicktronics of any unauthorized use of your Account.
The Site, Services and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, Kicktronics and its licensors exclusively own all right, title and interest in and to the Site, Services and Collective Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or Collective Content.
Subject to your compliance with the terms and conditions of these Terms, Kicktronics grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view, and print any Collective Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, or otherwise exploit the Site, Application, Services or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Kicktronics or its licensors, except for the licenses and rights expressly granted in these Terms.
REGISTERED USER CONTENT
Registered Users may post, upload, publish, submit or transmit Registered User Content. By making available any Registered User Content through the Site, Application or Services, you hereby grant to Kicktronics and its users a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, and otherwise exploit such Registered User Content. Kicktronics does not claim any ownership rights in any such Registered User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Registered User Content. You acknowledge and agree that you are solely responsible for all Registered User Content that you make available through the Site, Application or Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Registered User Content that you make available through the Site, Application or Services or you have all rights, licenses, consents and releases that are necessary to grant the rights in such Registered User Content, as contemplated under these Terms; and (ii) neither the Registered User Content nor your posting, uploading, publication, submission or transmittal of the Registered User Content or Kicktronic's or its user's use of the Registered User Content (or any portion thereof) will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You further warrant that you have the legal right to share any content you submit to Kicktronics and will indemnify and hold harmless Kicktronics for damages stemming from content you submit to Kicktronics.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site, Application or Services ("Feedback"). You may submit Feedback by using the “chat” function within the application for live converstion or by making a “ticket” within the application. You acknowledge and agree that all Feedback will be the sole and exclusive property of Kicktronics and you hereby irrevocably assign to Kicktronics and agree to irrevocably assign to Kicktronics all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At Kicktronics's request and expense, you will execute documents and take such further acts as Kicktronics may reasonably request to assist Kicktronics to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
You agree not to do any of the following:
Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances.
Use, display, mirror or frame the Site, Application or any individual element within the Site, Application, Kicktronics's name, any Kicktronics trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Kicktronics's express written consent;
Access, tamper with, or use non-public areas of the Site, Application, Kicktronics's computer systems, or the technical delivery systems of Kicktronics's providers;
Attempt to probe, scan, or test the vulnerability of any Kicktronics system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Kicktronics or any of Kicktronics's providers or any other third party (including another user) to protect the Site, Services or Collective Content;
Attempt to access or search the Site, Application, Services or Collective Content or download Collective Content from the Site, Application or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Kicktronics or other generally available third party web browsers;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Use any meta tags or other hidden text or metadata utilizing a Kicktronics trademark, logo URL or product name without Kicktronics's express written consent;
Use the Site, Application, Services or Collective Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Application, Services or Collective Content to send altered, deceptive or false source-identifying information;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Application, Services or Collective Content;
Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
Collect or store any personally identifiable information from the Site, Application or Services from other users of the Site, Application or Services without their express permission;
Impersonate or misrepresent your affiliation with any person or entity;
Violate any applicable law or regulation
Encourage or enable any other individual to do any of the foregoing.
Kicktronics will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Kicktronics may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Kicktronics has no obligation to monitor your access to or use of the Site, Applicaton, Services or Collective Content or to review or edit any Registered User Content, but has the right to do so for the purpose of operating the Site, Application or Services, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Kicktronics reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content, including, any Registered User Content, that Kicktronics, at its sole discretion, considers to be objectionable, in violation of these Terms or otherwise harmful to the Site, Application or Services.
COPYRIGHT AND IP POLICY
Kicktronics respects copyright law and expects its users to do the same. Kicktronics has adopted and implemented a policy that provides for the termination in appropriate circumstances of Registered Users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see 's Copyright and IP Policy at www..com/copyright, for further information.
The Site may contain links to third-party websites or resources. You acknowledge and agree that Kicktronics is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the text, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Kicktronics of such websites or resources or the text, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Registering for the Service is free, however, Kicktronics charges certain fees based on various transactions on the Service. Unless otherwise stated, all fees are in U.S. Dollars and are outlined in the Fees Policy.
We reserve the right to change, or discontinue, temporarily or permanently, some or all of the fees for the Service. Fees may vary and change over time based on your seller rating. Changes are published to the Site and Application and are effective after (14) days notice is given. The Company reserves the right to temporarily change the fees for promotional events. Such changes are effective once the temporary promotional event is posted to the Site or Application.
LISTING AND SALES
Selling: You must have the legal authority to sell the items that you are listing for sale through the Service. The photos you upload and item name and SKU must be accurate to what will be sent to the Buyer upon completion of sale. If you confirm that you will be shipping an item to a Buyer, you shall complete the transaction with the Buyer, unless the transaction is prohibited by law or these Terms of Service, subject to the return procedure described below. You are also responsible for paying Kicktronics the fee associated with the sale of the item.
Buying: Unless the transaction is prohibited by law or these Terms of Service, you must complete the payment of the item, subject to the return procedure described below.
Shipping: When the buyer pays for the item, Kicktronics will send notice to the Seller, with a pre-paid shipping label for the Seller to ship the purchased item to Kicktronics address. The Seller must only ship the purchased item using the provided shipping label. The Seller is required to ship the purchased item to Kicktronics the within three (3) days of receiving the order / purchase by the buyer, whichever is less. International buyers are responsible for any additional fees or taxes once the package has shipped. Once buyer receives their purchased item as described, within three (3) business days Kicktronics will verify the authenticity of the purchased item and ship the item to the buyer upon verification of both authenticity and quality as described in the seller providing listing of the product in the Kicktronics marketplace. Once confirmed, Kicktronics will credit the Seller’s account in the amount equal to the sale price less the commission fee, shipping fee and verification fee to be retained by Kicktronics. Any funds credited to the Seller’s account will be sent to the Seller via PayPal or ACH after deducting the commission, transaction fees (up to 3%), and shipping fees.
Returns: All sales are final. Make sure to enter your full and proper shipping address and shoe size. If your address changes, it is your responsibility to update your account.
Should an item received by Kicktronics from a seller received be found to be inauthentic or lacking in quality described, the item may be returned by Kicktronics to the original seller. The seller will be charged a non-refundable return fee of $30 plus shipping costs for each return. Sellers may have their account with Kicktronics terminated after three returns determined to be due to inauthentic or inaccurate listings of goods.
a purchaser at no charge. Payment by the buyer for such a returned shoe will be refunded via the original method of payment. In limited cases, at the discretion of Kicktronics the returned shoe may be re-listed with corrected information The buyer may choose to cosign the shoe (resell the shoe) using the Kicktronics marketplace at no charge, with the same terms and conditions as for any seller, as described above. Excepting for the above, all sales are final and non-returnable.
The seller will be charged a non-refundable return fee of $30 plus shipping costs for all refunds and have their account with Kicktronics terminated after three returns.
Kicktronics uses Braintree payment systems, the most secure payment processing company. Braintree is a division of PayPal, Inc. (Braintree) for payment processing services. By using Kicktronics app you agree to the Braintree Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/cea-wells. If you have questions regarding the MSA, please contact Braintree at 877.434.2894.
TERMINATION AND ACCOUNT CANCELLATION
If you breach any of these Terms, Kicktronics will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. Kicktronics reserves the right to revoke your access to and use of the Site, Services and Collective Content at any time, with or without cause. When you register to join the Site and create a profile page, you are free to choose any name to identify yourself to other Registered Users. However, any complaints to Kicktronics by Registered Users, arising out of or in connection with your use of a false name, may result, in Kicktronics's sole discretion and without prior notice to you, in the suspension or disabling of your Account or the termination of these Terms. In the event Kicktronics terminates these Terms for your breach, or revokes your access to and use of the Site, Application or Services or terminates or discontinues the Site, Application or Services and consequently these Terms, you will remain liable for all amounts due hereunder. You may cancel your Account at any time by sending an email to help@Kicktronics.com.
THE SITE, SERVICES AND COLLECTIVE CONTENT ARE PROVIDED “AS IS” AND ‘AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, Kicktronics EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Kicktronics MAKES NO WARRANTY THAT THE SITE, SERVICES OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. Kicktronics MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SERVICES, COLLECTIVE CONTENT OR ANYTHING ELSE PURCHASED OR OBTAINED THROUGH THE Site, Application or Services OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE Site, Application or Services.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Kicktronics OR THROUGH THE SITE, APPLICATION, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS OF, ALL OF YOUR ONLINE OR OFFLINE COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE Site, Application or Services AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE Site, Application or Services. YOU UNDERSTAND THAT Kicktronics DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE Site, Application or Services, NOR DOES Kicktronics MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE Site, Application or Services. Kicktronics MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE Site, Application or Services OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE Site, Application or Services. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE Site, Application or Services AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE Site, Application or Services, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.
You agree to defend, indemnify, and hold Kicktronics, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Application, Services or Collective Content, or your violation of these Terms.
LIMITATION OF LIABILITY
Kicktronics is a platform for Buyers and Sellers to transact on with each other. While Kicktronics may help facilitate resolution of disputes, and may provide guarantees stated in the Kicktronics Return Policy or Kicktronics Authenticity Guarantee Policy, we do not guarantee the existence, quality, safety or legality of the items advertised; the truth or accuracy of users' listings; the ability of Sellers to sell items; the ability of Buyers to pay for items; that a Buyer or Seller will actually complete a transaction or return an item; the legal transfer of item from the Seller to the Buyer; or that a buyer or seller will actually complete a transaction.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES AND COLLECTIVE CONTENT REMAINS WITH YOU. NEITHER Kicktronics NOR ANY OTHER party involved in creating, producing, or delivering the Site, Services or COLLECTIVE Content will be liable for any direct damages, or any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, arising out of or in connection with: (a) thESE TERMS or from the use OF or inability to use the SITE, Services OR COLLECTIVE CONTENT; (b) THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE Site, Application or Services; (c) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF the Site, Application or Services OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE Site, Application or Services, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not Kicktronics has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE. ASIDE FROM THE SERVICES PROVIDED THROUGH THE SITE, Kicktronics IS NOT LIABILE FOR ANY INJURY, LOSS, CLAIM, DAMAGE, OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED ON WARRANTY, CONTRACT, TORT, PRODUCT LIABILITY, OR OTHERWISE, WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH A USER'S VISIT TO A VENUE, RESULTING FROM USE OF THE Site, Application or Services.
In no event will Kicktronics'S aggregate liability arising out of or in connection with THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR COLLECTIVE CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO Kicktronics FOR USE OF THE SITE, SERVICES OR CONTENT OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Kicktronics AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
PROPRIETARY RIGHTS NOTICES
All trademarks, service marks, logos, trade names and any other proprietary designations of Kicktronics used herein are trademarks or registered trademarks of Kicktronics. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
CONTROLLING LAW AND JURISDICTION
These Terms and any action related thereto will be governed by the laws of the State of New Jersey California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Northern District of New JerseyCalifornia and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Terms constitute the entire and exclusive understanding and agreement between Kicktronics and you regarding the Site, Services and Collective Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Kicktronics and you regarding the Site, Services and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without Kicktronics's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Kicktronics may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by Kicktronics: (i) via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
You and Kicktronics agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site, Application or Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Kicktronics are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Kicktronics otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/si.asp?id=3477 and a separate form for California residents at www.adr.org/si.asp?id=3485.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and Kicktronics otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Kicktronics submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Kicktronics will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Kicktronics will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Changes. Notwithstanding the provisions of the “Modification” section above, if Kicktronics changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to help@Kicktronics.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Kicktronics's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Kicktronics in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of Kicktronics to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Kicktronics. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
If you have any questions regarding our legal policies, please email us: help@Kicktronics.com