1. Summary of Services
Kickbooster is a professional and customizable reward-based crowdfunding, pre-order and e-commerce affiliate/referral software and communication service (the "Service").
2. Acceptance of Terms
3. Campain Admins
You are a "Campaign Admin" if you are setting up or otherwise managing a Campaign through our Services. If you are a Campaign Admin, this section applies to you.
3.1. Creating a Campaign
A Campaign Admin's the first step in launching a fundraising Campaign on the Services is to create a campaign profile page and publish a "Campaign." On the campaign profile page you can enter information describing your Campaign and why people should be a part of it. Campaign Admin's can control the type of Campaign you set up.
3.2. Offering Rewards and Selling Something
A Campaign Admin may offer non-monetary rewards called "Perks" in exchange for Contributions or may sell something, provided that the offering of such Perks or the sale is lawful under all applicable laws, including without limitation all applicable provincial and federal securities laws, and otherwise complies with these Terms.
3.3. Processing Funds
3.4. Use of Funds
Campaign Admins agree that Campaign Funds may only be used for purposes expressly disclosed by the Campaign and that Campaign Funds will not be used for any other purpose. As a Campaign Admin, you agree that if at any time while a Campaign is active, or a reasonable amount of time thereafter as determined by Kickbooster, Kickbooster makes a good faith determination that the Campaign information is inaccurate or deceptive in any respect, or that the Campaign Funds have not been used solely for the Campaign's stated purposes, Kickbooster may refund Contributions to their respective Contributors or, if Campaign Funds have been disbursed, you agree to promptly and directly refund Contributions to their respective Contributor.
3.5. Campaigns Raising for the Benefit of Nonprofits
Campaign Admins raising funds for a Beneficiary that is a charity are solely responsible for ensuring that they have selected the correct charity to fundraise for or donate to. All Campaign Funds donated to charities are made as unrestricted gifts, and Kickbooster has no obligation to facilitate the earmarking of Contributions for any particular purpose. However, when a charity is the Campaign Admin and the Beneficiary, we expect that charity to fulfill its promises as stated in the Campaign.
3.6. You're Raising Money on Behalf of a Charity
You are solely responsible for ensuring that you have selected the correct organization to fundraise for or donate to. All donations to charities are made as unrestricted gifts, and we have no obligation to facilitate the earmarking of Payment Transactions for any particular purpose.
3.7. You're a Charity
If Campaign Admin is a charity recognized by the U.S. Internal Revenue Service, Campaign Admin grants Kickbooster the right to provide, on Campaign Admin's behalf, electronic documentation that acknowledges a Kickbooster/Affiliate 's donation on the Service to your Campaign in accordance with IRS rules governing acknowledgement of charitable contributions "Donation Receipt". Kickbooster may provide a Donation Receipt while Campaign Admin has any Campaigns accepting Payment Transactions on the Service and for up to 30 days thereafter. If you do not want us to provide such acknowledgements, please contact us at [email protected]
If Campaign Admin offers a Reward as a part of the Campaign, Campaign Admin agrees to truthfully state the value of any goods or services given in exchange for the donation, as according to the Internal Revenue Service.
3.8. You're a Political Campaign
If you have been approved by Kickbooster to run a political campaign ("Political Campaign Campaign Admin"), we may offer you enhanced campaign administrator functionality. Political Campaign Campaign Admins may be enabled to enter a Kickbooster/Affiliate authorized Payment Transaction on behalf of the Kickbooster/Affiliate ("Campaign Admin Facilitated Payment Transaction.") At our request, you will provide us a copy of a Kickbooster/Affiliate 's completed donation form within a reasonable period.
Political Campaign Campaign Admins are bound by the same terms Kickbooster/Affiliate s are bound to under these Terms (including for offline Payment Transactions recorded on the Services) in addition to those terms specific to Political Campaign Campaign Admins. This includes, but is not limited to accuracy and honesty in all Campaign Admin Facilitated Payment Transactions and information provided.
3.9. User Activity
Campaign Admin is responsible for all actions taken by visitors to Campaign Admin's Kickbooster site and Kickbooster/Affiliate s, and Kickbooster has no responsibility or obligation to police comments, content, or purchase behavior occurring on your Kickbooster site.
3.10. Designate a Beneficiary
A Campaign Admin, is required to designate a person or legal entity to which funds will be directed (the "Beneficiary") for every Campaign
Any Campaign Fund distributions may be subject to compliance and risk reviews by Kickbooster or its representatives to determine other terms in these Terms are obeyed. The compliance and risk reviews may involve an interview or document review if deemed necessary in our sole discretion.
In order to receive processed Contributions (as defined below), a Campaign Admin must designate a bank account in Canada or the United States acceptable to Kickbooster to receive the Campaign Funds (the "Destination Account"). For a Beneficiary that is a charity, we may, in our discretion, send a cheque to the physical address for the charitable Beneficiary, but we will inform the Campaign Admin of this decision prior to sending such cheque.
Kickbooster communicates transactions to Stripe for processing. By agreeing to these Terms, you are also agreeing to Stripe's terms (www.stripe.com/terms).
Our Payment Processors will manage Campaign Funds and payouts. Campaign Funds will be collected from Kickbooster/Affiliate s and disbursed to the Beneficiary via the Destination Account. Subject to the other terms in these Terms, payouts will be issued within the time frame stated on the Service. We are not responsible for any error or omission in the name, mailing address, or Destination Account information you provide, or for any errors, bugs or other problems of the Payment Processor.
3.11. Campaign Admin's Representations and Promises
Campaign Admin promises the following: (a) you are at least 13 years of age, and, if you are between the ages of 13 and 17, you've obtained the consent of your parent or legal guardian to your acceptance of these Terms; (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) the name identified by you when you registered is your name or business name under which you are mostly commonly known by or under which you sell products and services; (d) any transaction submitted by you will represent or be backed by a bona fide transaction for permitted products or services, or a charitable donation; (e) any transactions submitted by you will accurately describe the products or services sold and delivered to a purchaser, or a donation received for the purpose accurately described on your site; (f) you will fulfill all of your obligations to each Kickbooster/Affiliate for which you submit a transaction and will resolve any consumer dispute or complaint directly with the Kickbooster/Affiliate ; (g) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to your business, including any applicable tax laws and regulations; (h) except in the ordinary course of business, no transaction submitted by you through the Service will represent a sale to any principal, partner, proprietor, or owner of your entity; (i) you will not use the Services, directly or indirectly, for any fraudulent or illegal undertaking, or in any manner so as to interfere with the normal operation of the Services; and (j) you will not describe or assign keywords to your Campaign in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others.
Ensure you own or have a legal right to use the Member Content (as defined below) with the Services so as not infringe upon the Intellectual Property Rights (as defined below) of others. "Member Content" means the content a Campaign Admin uses to create and manage a Campaign, and the content any user with a Kickbooster account provides to a Campaign on the Services, including posts or comments or questions on, feedback about, contributions to, or other information provided to, a Campaign or the Services. "Intellectual Property Rights" means all worldwide rights in patents, trademarks, trade names, service marks, copyrights, trade secrets, publicity, goodwill, and all other intellectual property and proprietary rights as may now exist or hereafter come into existence, and all derivatives, applications therefore and registrations, renewals, and extensions thereof.
3.12. Use of Funds
Campaign Admin agrees that Campaign Funds may only be used for the purposes expressly disclosed by the Campaign, and that Campaign Funds will not be used for any other purpose. Campaign Admin agrees that if Kickbooster makes a good faith determination that the Campaign information is inaccurate in any respect, or that the Campaign Funds have not been used solely on behalf of the Campaign, you agree to promptly refund the entire amount of Campaign Funds from such Funding Request to the Kickbooster/Affiliates. The foregoing does not limit in any way any other remedy that may otherwise be available to any party.
4. Affiliate User
You are a "affiliate user" if you are setting up or otherwise managing unique URLs through our Services driving traffic to our campaign admin accounts campaigns. If you are a Affiliate User, this section applies to you and being an affiliate user we assume no responsibility and you are at your own risk.
4.1 Affiliate User Understanding
Commissions (affiliate earnings) and, “perks,” are only eligible to be collected and paid for a Campaign when a Campaign reaches or exceeds the crowdfunding goal amount. Once the campaign admins crowdfunding campaign is over if funding is successful Kickbooster will invoice the campaign admin and once payment is received affiliate commissions will be paid out by Kickbooster. Kickbooster is not responsible for paying affiliate commissions prior to receiving funding from the campaign admin and is not responsible for any non paid commission. If a campaign admins crowdfunding campaign is unsuccessful in reaching its goal no affiliate commission will be paid out to you affiliate users. When a Campaign ends, the Campaign will automatically close and no more Contributions will be accepted for the Campaign.
4.2 Affiliate User Responsibility
- You place our Campaign Admins banners anywhere on your site as you see fit, or within non-spam emails.
- We may email you concerning new Campaign Admin programs
- We might change the service here and then
- Adult, Hate, or other related sites are not allowed
- You will be paid your commissions, at such time as your account balance is $20 USD or more.
- All statistics are collected and calculated by Kickbooster.me, and will be the only valid stats used for determining commissions.
- As an affiliate, you can only have 1 account. You can participate in multiple affiliate campaigns in one account, but only one account is allowed. Self-referrals for affiliate or Campaign Admin accounts are strictly prohibited.
- You won't hold us liable for anything, a link to a non-kickbooster.me Web site does not mean that Kickbooster.me endorses or accepts any responsibility for the content or the use of such Web site.
- You cannot SPAM. You cannot SPAM. You cannot SPAM. We will terminate your account on the first offense of SPAMMING. Do not send email to lists or groups that you do not have permission to send to. We cannot stress this enough, we WILL terminate your account on the first offense.
- You may place banners or links within your newsletters, in content of your website, or within other web related content.
- Fraud is a serious offense, and will be treated as such. Fraud is defined as any action that intentionally attempts to create sales, leads, or click-throughs using robots, frames, iframes, scripts, or manually "refreshing" of pages, for the sole purpose of creating commissions. ANY ATTEMPTED FRAUD OR FRAUD WILL RESULT IN MEMBERSHIP TERMINATION AND VOIDED COMMISSIONS.
When any Perks are offered in a Campaign, the delivery and characteristics of such Perks are a promise between you (as Affiliate) and the Campaign Admin or the Beneficiary, as applicable. Kickbooster does not represent, warrant, or guarantee Perks will be delivered or be satisfactory to you, and we disclaim all warranties relating to Perks. We are not liable to any user of the Services if Perks are not delivered, or are not as described, by the Campaign Admin.
4.4 Affiliate Payment
You will receive a Commission for sending successful pledges via Your Links to campaign admin created pages within Kickbooster. In order to place Links, you must first be registered as an Affiliate of that program. You understand that the Payout amount may be changed by the Campaign Creator at any time. This information is available to You at your Kickbooster.me dashboard. You receive the Commission from Kickbooster.me. Payments are made for all account balances of $20 and above once Kickbooster receives payment by the Campaign. Money credited to Your Account does not accrue interest. In the event of a VOID by a Campaign Admin, Kickbooster.me may recover from You the corresponding Commission previously credited to Your Account. The VOID Commission will be immediately deducted from Your Account balance. In the event that Your Account balance is less than the VOID Commission, the VOID Commission will be deducted against Your future earnings. You will NEVER be asked to send money to Kickbooster.me.
5. Processing Funds, Payouts & Fees
5.1. Payment Processor
Payouts are made to a valid Destination Account according to the payout methods and schedules provided by our Payment Processor and as states on the Service. In the event of a conflict, the Payment Processor's schedule controls. We may delay or decide not to make a payout to fulfill our compliance obligations and internal risk policies, or for violations of these Terms. In the event we decide to not payout Campaign Funds to you, we will return them to the Kickbooster/Affiliate s. Kickbooster will not payout to the Beneficiary Payment Transactions that fail processing.
We are not responsible for any error or omission in the name, mailing address, or Destination Account information you provide, or for the performance of our Payment Processor. For charity Campaigns, we may decide to issue a check to the charity Beneficiary, at our sole discretion.
The Campaign Admin is solely responsible for preventing fraudulent or money-laundering transactions.
At Kickbooster's discretion, we may withhold a reasonable amount of Payment Transactions from being paid out to the Beneficiary, upon our good faith determination of the risks associated with the Campaign Admin fulfilling their Reward obligations or obligations related to pre-ordered or ordered goods or services "Reserves". Kickbooster will release Reserves upon its determination the Campaign Admin has fulfilled it's obligations to Kickbooster/Affiliate , or at a time sooner upon our sole discretion.
5.3. Payment of Fees
Fees for the Service are described upon creating your Kickbooster site, and fees to those purchasing the products and services through your Kickbooster site are shared on the products and services page ("Service Fees"). The fees for payment processing include credit card processing as well as fees associated with chargebacks or refunds, as stated on the Service ("Processor Fees"). Service Fees and Processor Fees are collectively referred to as "Fees".
We collect all Fees from Campaign Funds by deducting them from any payout made to you or, if there are no Campaign Funds, from your bank account or other source. All Fees are non-refundable.
Service Fees are subject to change upon 30 days notice, which may be provided at any time by posting the changes to www.Kickbooster.com or the main campaign administration area. Such Service Fee changes may impact existing Campaigns on a going forward basis.
All fees are exclusive of all federal, provincial, state or other governmental sales, goods and services, harmonized or other taxes, fees or charges now in force or enacted in the future. You are required to fulfill all rewards of for successful fundraising Campaigns or refund any Kickbooster/Affiliate for a Reward you do not or cannot fulfill.
Campaign Admin must provide credit card information upon signup. The invoice total will be deducted from the credit card on file 21 days after the campaign has ended. The deduction is only processed for successful campaigns. The invoice total will be available the day after the campaign has ended. Once payment is processed, Kickbooster will process payment to affiliates as per terms listed above. If the credit card on file fails to process we will send follow up reminders to update the credit card information.
AFFILIATE TRANSACTIONS AND PAYMENT The Campaign Admin shall establish and define a set Commission that Affiliates will earn for authorized transactions received via their Links. Affiliates shall earn a Commission on authorized transactions when a sale is placed by a customer who follows a Link from the Affiliate’s site to the Campaign Admin’s site. The Campaign Admin will only pay Commission on Qualifying Sales subject to resolution of all outstanding Voids. All payments to Affiliates, including bonuses or rewards, shall be processed through Kickbooster.me. Payments to Affiliates are made for all account balances of $20 and over. VOIDS/REVERSALS/PRODUCT RETURNS A “Void” is executed by the Campaign Admin as a means to reverse the commission given to a particular affiliate on Qualifying Sales. Voids may be the result of (i) canceled sales; (ii) product returns; (iii) duplicate or repeat errors; (iv) non-bona fide Transactions; (v) nonreceipt of payment from Customer; (vi) Refund of payment to Customer; (vii) Failure by an Affiliate to comply with the Terms of Agreement set forth by Kickbooster.me, Inc. and the Campaign Admin. Campaign Admin will decide and indicate to Kickbooster.me, Inc. how long they require sales to remain in a pending status prior to being credited to an Affiliate. This number will be referred to as the “Pending Sales Period” and is defined as 0 days unless specified in the “Addendum” to this agreement. From that date, the sale will remain in a status allowing the Campaign Admin to Void the commission for the remainder of the current month, plus 19 days into the next month. At that time, the commission will be paid to the Affiliate and the Campaign Admin will no longer be able to reverse the sale. If in the “Addendum”, a positive number is used for the “Pending Sales Period”, the Campaign Admin agrees to keep in their ShareASale account a balance of monies equal to the current value of any pending transactions posted to their account.
5.4. Prohibited Transactions
You must use our Service in a manner that is compliant with all applicable laws, regulations, ordinances, directives, and any government imposed restrictions on your actions. For example, you cannot use our platform in a manner related to the sale of controlled substances, pornographic items, securities, regulated weapons or accessories, or anything else that would be illegal. However, there are plenty of other illegal activities in this world. Please don't use Kickbooster to engage in them.
For a complete list of prohibited transactions, please see our Payment Processor's Acceptable Use Policy.
6. Account, Password, and Security
As part of the account creation process, you will create a password and an account. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your account. You shall not allow any third party to use your account credentials. You agree to (a) immediately notify us of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Kickbooster will not be liable for any loss, damage or other liability arising from your failure to comply with this Section or from any unauthorized access to or use of your account. You agree that, in the event of any dispute between two or more parties as to account ownership, Kickbooster will be the sole arbiter of such dispute in its sole discretion and that Kickbooster's decision (which may include termination or suspension of any account subject to dispute) will be final and binding on all parties.
You are solely responsible for any and all applicable taxes associated with transactions on Kickbooster sites.
8. Acceptable Uses
You may not use the Service in a way that:
- Exploits, harms or attempts to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- Sends, knowingly receives, uploads, downloads, uses, or re-uses any material which does not comply with the standards set out in these Terms.
- Transmits, or procures the sending of, any advertising or promotional material, including any "junk mail," "chain letter," "spam," or any other similar solicitation.
- Impersonates or attempts to impersonate Kickbooster, a Kickbooster employee, another user or any other person or entity (including, without limitation, by using email addresses or profile names associated with any of the foregoing).
- Engages in any other conduct that restricts or inhibits anyone's use or enjoyment of the Services, or which, as determined by us, may harm Kickbooster or users of the Services or expose them to liability.
- Uses the Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the Services, including their ability to engage in real-time activities through the Services.
- Uses any robot, spider or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material on the Services or communications related to it.
- Uses any manual process to monitor or copy any of the material on the Services or for any other unauthorized purpose, including but not limited to communications related to it without our prior written consent.
- Uses any device, software, or routine that interferes with the proper working of the Services
- Introduces any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempts to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer, or database connected to the Services.
- Attacks the Services via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempts to interfere with the proper working of the Services.
9. Nature of Relationship
You agree Kickbooster is only acting as a passive conduit for your activities on the Service. This is so even in the event that you receive specific support from us in relation to your actives on the Service. We want to help you where we can, but you accept our help as is.
Kickbooster is not a bank or a money services business ("MSB") and Kickbooster does not offer banking or MSB services as defined by the United States Department of Treasury.
11. Cardholder Data Security
Kickbooster reserves the right to display (1) attribution links or logos, such as "Powered by Kickbooster" or a Kickbooster branding logo (collectively "Attribution Marks") or (2) a designation of Campaign verification or approval by Kickbooster ("Seals") on the main site page, campaign page, and during checkout. Such Attribution Marks and Seals may not be altered or removed.
You must not issue any press release or make any public statement related to the Services, or except as expressly provided in these Terms, use our or any of our names or Marks (as defined below) in any way without our prior written permission.
13. Intellectual Property
13.1. Proprietary Rights
Kickbooster and its licensors retain all right, title and interest, including without limitation all Intellectual Property Rights relating to the Services (and any derivative works or enhancements thereof), including but not limited to, all software, technology, information, content, materials, guidelines, and documentation. You do not acquire any right, title, or interest therein, except for the limited use rights expressly set forth in these Terms. Any rights not expressly granted in these Terms are deemed withheld. You agree not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services. "Intellectual Property Rights" means all worldwide rights in patents, trademarks, service marks, copyrights, trade secrets, publicity, goodwill, and all other intellectual property rights as may now exist or hereafter come into existence, and all derivatives, applications therefore and registrations, renewals, and extensions thereof.
13.2. Open Source Components
Any third party component embedded, included or provided by Kickbooster for use with the Services may only be used in conjunction with the Services, and this use is subject to these Terms. However, to the extent Services include components governed by open source licenses with provisions inconsistent with these Terms, those components are instead governed solely by the applicable open source licenses. To the extent the Services include components covered by open source licenses requiring the provision of corresponding source code for those components, Kickbooster hereby offers the provision of that source code consistent with those licenses.
13.3. Third Party Tools
Kickbooster may make available third party tools "Third Party Tools", which may not monitor or control. You accept these Third Party Tools "as is" without any warranties, representations, or conditions of any kind and without any endorsement, and you agree to Kickbooster has no liability arising from or relating to your use of the Third Party Tools. You accept all risk associated with using a Third Party Tool, even if you receive direct support or assistance from Kickbooster in selecting, implementing or operating the Third Party Tool.
13.4. Member Content
When including and using Member Content on the Services, you must have the legal right to do so, and you must avoid infringing upon the intellectual property rights of others in connection with the Services. "Member Content" means the content you use to create and manage your Kickbooster site. The same conditions apply to comments, questions, and other content you might post to our blog.
You represent and warrant:
- Your Member Content, when used as contemplated hereunder, will not contain material subject to third party copyrights, trademark rights, or rights of privacy or publicity, or material that is subject to any other third-party proprietary rights, unless you have permission from the rightful owner of the materials or you are otherwise legally entitled to post the material and to grant Kickbooster all of the license rights granted in these Terms.
- You will pay all royalties and other amounts owed to any person or entity based on you contributing your Member Content and how it would be used by our Services and contemplated by these Terms.
13.5. Licenses to Member Content
By contributing any Member Content on the Services, you expressly grant, and you represent and warrant that you have a right to grant, to Kickbooster and to all its affiliates, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers), transferable right to (and to allow others acting on its behalf to) use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such Member Content including, without limitation, your name, voice, and or likeness contained in your Member Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed.
You do not have and do not obtain rights of any kind in or to any subdomain name on the Service by any means. At our sole discretion, we retain the right to withdraw the availability of a subdomain name to you at anytime, whether or not you are using it.
We always appreciate your feedback or other suggestions about our Services, but you should understand that we may use them without any obligation to compensate you for them. You can email your feedback to [email protected]
Kickbooster's name, and all related names, logos, product and service names, designs and slogans (collectively the "Marks") are registered or common law service marks of Kickbooster or its affiliates or licensors. You must not use such marks without our prior written permission.
We may refuse to point your Kickbooster site to a domain name that we determine in our sole discretion you may not have the rights to own, license or use.
15. Kickbooster Checkout Terms
You understand and agree that Kickbooster will display Kickbooster Checkout Terms (www.Kickbooster.com/checkout_terms) in the checkout process for your Kickbooster site, which will provide terms with which your Kickbooster/Affiliate s may make their Payment Transaction to your Campaign. You cannot alter or remove them.
16. Copyright Infringement
17. General Conditions
- We reserve the right to refuse service to anyone for any reason at any time
- We reserve the right to modify or terminate the Service for any reason, without notice, at any time.
- We reserve the right to reject, cancel, interrupt, remove, or suspend a Campaign at any time and for any reason, without liability for any damages as a result of any of those actions. Kickbooster may or may not comment on the reasons for such actions.
- We reserve the right to terminate a specific Campaign at any time.
- We are not obligated to provide technical support.
- We may change or remove any description or keyword that we consider inappropriate or unlawful, or otherwise likely to cause Kickbooster liability.
18. Termination, Abandoned Accounts, and Survival
18.1. Service Variability & Termination
Kickbooster reserves the right at any time to, and from time to time may, modify, suspend or discontinue, temporarily or permanently, the Services, in whole or in part, for any reason or for no reason, with or without notice. You agree that Kickbooster will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
You may cancel your account at any time by emailing [email protected] Once your account is cancelled we may immediately delete all of your Content. Please make local backups according to your needs before you cancel your account.
18.2. Abandoned Accounts
You agree to defend, indemnify, and hold harmless Kickbooster and its affiliates, and each of its and their respective officers, directors, agents, partners, and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential, or otherwise), loss, liability, cost, and expense (including, without limitation, reasonable attorney and accounting fees) resulting from any threated claim, claim, demand, suit, proceeding (whether before an arbitrator, court, mediator, or otherwise or leading up to such forum), or investigation made by any third party, including Kickbooster/Affiliate s, due to or arising out of: Member Content; your use of the Services; your Campaign(s); your violation of the rights of another; or your breach of any of these Terms. Kickbooster will provide notice to you of any such claim, provided that the failure or delay by the right to assume the exclusive defense and control of any matter that is subject to indemnification under this Section, and in such case, you agree to cooperate with all reasonable requests in assisting Kickbooster's defense of such matter.
Affiliate accounts that are left inactive will be removed from our system if their balance is equal to or less than $25. If an abandoned affiliate account has a balance between $25 and $50, a $25 fee will be assessed once per calendar month, until the balance is equal to zero dollars - and is closed. At no time will an affiliate ever owe monies to Kickbooster.me, Inc. based on fees - the account will simply be closed. An abandoned affiliate account is defined as any account that has not been logged in to for a period of 6 months, nor have any transactions been posted to that account. If one or the other of those conditions are true - the account will remain in an active state.
All provisions of these Terms that by their nature should survive termination of your right to use the Services shall survive, including, without limitation, all limitations on liability, releases, indemnification obligations, disclaimers of warranty, and intellectual property protections and licenses.
You agree to defend, indemnify, and hold harmless Kickbooster and its affiliates, and each of its and their respective officers, directors, agents, partners, and employees, harmless from any and all damage (whether direct, indirect, incidental, consequential, or otherwise), loss, liability, cost, and expense (including, without limitation, reasonable attorney and accounting fees) resulting from any threatened claim, claim, demand, suit, proceeding (whether before an arbitrator, court, mediator, or otherwise or leading up to such forum), or investigation made by any third party, including Kickbooster/Affiliate s, due to or arising out of: Member Content; your use of the Services; your Campaign(s); your violation of the rights of another; or your breach of any of these Terms. Kickbooster will provide notice to you of any such claim, provided that the failure or delay by the right to assume the exclusive defense and control of any matter that is subject to indemnification under this Section, and in such case, you agree to cooperate with all reasonable requests in assisting Kickbooster's defense of such matter.
20. Warranty Disclaimer
WE TRY TO KEEP THE SERVICES UP, BUG-FREE, AND SAFE, BUT YOU USE THE SERVICES AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF Campaign AdminABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, Kickbooster, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT: (I) THE CONTENT OF THE SERVICES IS ACCURATE, RELIABLE OR CORRECT, (II) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR RESULT IN ANY BENEFIT, FUNDING OR REVENUE; (III) THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, SECURE, OR ERROR-FREE, (IV) THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, OR (V) THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Kickbooster WILL HAVE NO LIABILITY FOR THE CONTENT, PRODUCTS, SERVICES, PHILANTHROPIC ENDEAVORS, ACTION, OR INACTIONS OF ANY Campaign Admin, CAMPAIGN AMINISTRATOR, POLITICAL CAMPAIGN Campaign Admin, BENEFICIARY, OR Kickbooster/Affiliate , OR RELATING TO A CAMPAIGN. YOU ACKNOWLEDGE Kickbooster HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE QUALITY, SAFETY, OR LEGALITY OF CAMPAIGNS, THE TRUTH OR ACCURACY OF ANY USER CONTENT OR CAMPAIGNS, OR THE ABILITY OF ANY USER TO PERFORM, OR ACTUALLY COMPLETE A CAMPAIGN OR THE ACTIVITIES CONTEMPLATED BY A CAMPAIGN. SOME STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
21. Limitations of Liability
Kickbooster WILL NOT BE LIABLE, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WITH RESPECT TO THE SERVICES, OR ANY USER ACTION OR INACTION ON THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THESE TERMS, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF Kickbooster HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). OUR AGGREGATE LIABILITY ARISING OUT OF THESE TERMS OR Kickbooster WILL NOT EXCEED THE AMOUNT OF FEES EARNED BY US IN DIRECT CONNECTION WITH YOUR USE OF THE SERVICE DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. SOME STATES DO NOT ALLOW LIMITATIONS ON LIABILITY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
These Terms constitutes the entire agreement between you and Kickbooster and govern your use of the Services, superseding any prior or contemporaneous agreements, proposals, discussions, or communications between you and us on the subject matter hereof.
22.1. Law and Forum for Legal Disputes
22.1.1. Governing Law and Forum
These Terms shall be governed by the laws of the internal substantive laws of the province of Manitoba regardless of your country of origin or where you access the Services, and notwithstanding any conflicts of law principles. Notwithstanding the preceding sentence with regard to substantive law, you and Kickbooster acknowledge that these Terms are evidence of a transaction involving interstate commerce and any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act. The United Nations Convention for the International Sale of Goods does not apply to these Terms.
22.1.2. Informal Dispute Resolution
Before filing a Claim for arbitration or otherwise seeking relief in a court of law, you agree to first contact Kickbooster at [email protected] and provide Kickbooster with a notice of dispute ("Notice of Dispute") to inform Kickbooster's Customer Support desk of your complaint and seek resolution. A Notice of Dispute must include: your name, pertinent account information, a brief description of your dispute, and contact information so that Kickbooster may evaluate the dispute and attempt to informally resolve same. Kickbooster will have 60 days from the date of your full and complete Notice of Dispute to informally resolve the dispute, which if successful will avoid the need for further action.
22.1.3. Mandatory Arbitration
In the unlikely event that Kickbooster has not been able to resolve a dispute it has with you as in the manner described above in Section 22.1.2 under the heading "Informal Dispute Resolution" within 60 days of the date of your Notice of Dispute, the parties hereto each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as described below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, "Claims"), by mandatory, confidential, and final binding arbitration, without any right of appeal, in the English language before an arbitrator from Judicial Mediation Services ("JAMS") according to the JAMS Optional Expedited Arbitration Provisions ("Rules") and these Terms. To the extent there is any conflict between the Rules and this Section 22.1.3, this Section 22.1.3 shall govern. The arbitration shall be conducted by a sole arbitrator having particular expertise in online commerce or software services selected in accordance with the Rules. The arbitration shall be conducted in Winnipeg MB, Canada (unless the parties agree otherwise) or, to the extent permitted by the Rules, by telephone, online, and/or based solely on written submissions. Any award rendered by the arbitrator shall be final and binding, without any right of appeal, and may be entered in any court of competent jurisdiction. Some jurisdictions do not allow mandatory arbitration provisions under certain statutes, so this Section 21.1.3 entitled "Mandatory Arbitration" may not apply to you. This Section 22.1.3 entitled "Mandatory Arbitration" shall not apply to the extent prohibited by applicable law.
22.1.4. Injunctive Relief
Nothing in Section 22.1.3 entitled "Mandatory Arbitration" shall prevent Kickbooster from seeking injunctive or other equitable relief from any court of competent jurisdiction as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data, Intellectual Property Rights, or other proprietary rights in or to the Services of the Kickbooster Content.
22.1.5. Class Action Waiver
YOU AND Kickbooster AGREE THAT ANY AND ALL CLAIMS MUST BE BROUGHT IN THE EACH PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. YOU AGREE THAT YOU AND Kickbooster ARE EACH WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING.
22.1.6. Class Arbitration Waiver
THE WAIVER IN SECTION 22.1.6 APPLIES TO A MANDATORY ARBITRATION REQUIRED BY SECTION 22.1.3, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE YOUR CLAIM WITH ANY OTHER PERSON'S CLAIM. Notwithstanding the foregoing, Kickbooster and you recognize that it may be more efficient to consolidate all claims relating to a single Campaign, exclusively comprising the Campaign Admin and Contributors to that Campaign, before the same arbitrator. As such, you and Kickbooster agree that the arbitrator may consolidate claims of members that concern a single Campaign. However, this in no way alters the waiver of the parties as stated in these Terms, nor should it be construed as an agreement to class arbitration.
22.1.7. Jury Trial Waiver
YOU AGREE THAT YOU AND Kickbooster ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
22.2. No Waiver
If any provision of these Terms is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to enforce such provision to give effect to the parties' intentions as reflected herein. The other provisions of the Terms shall be unaffected and remain in full force and effect, except that in the event of unenforceability of Section 22.1.5 entitled "Class Action Waiver", Section 22.1.3 entitled "Mandatory Arbitration" shall be unenforceable.
If any provision of these Terms is found by an arbitrator or court of competent jurisdiction to be invalid, the parties nevertheless agree that the arbitrator or court should endeavor to enforce such provision to give effect to the parties' intentions as reflected herein. The other provisions of the Terms shall be unaffected and remain in full force and effect, except that in the event of unenforceability of Section 22.1.5 entitled "Class Action Waiver" and/or Section 22.1.7. entitled "Jury Trial Waiver", Section 22.1.3 entitled "Mandatory Arbitration" shall be unenforceable.
22.4. Geographic Restrictions
The owner of the Services is based in the province of Manitoba in Canada and the Services are provided on and through servers located in the United States.
The Services are intended for use only in jurisdictions where they may lawfully be offered for use.
You agree to comply with all applicable laws, restrictions, and regulations relating to the export of products and information. For purposes of the U.S. Export Administration Act ("Export Laws"), to the extent not prohibited by applicable law, you warrant that you are: (a) not a citizen, or otherwise located within, an embargoed nation (including without limitation the United States Office of Foreign Assets Control ("OFAC") countries of Iran, Syria, Cuba, North Korea and Sudan and certain "Specially Designated Nationals" as updated from time to time by OFAC [NTD: Confirm references to OFAC with US counsel.] and (b) not otherwise prohibited under the Export Laws from receiving such products and information. Some jurisdictions may not use to enforce this covenant, so the above limitation may not apply to you.
22.5. Cooperation with Authorities and Police Enforcement
You acknowledge that we have the right to report to law enforcement authorities any actions that may be considered illegal or unlawful, as well as any reports we receive of such conduct. When requested, Kickbooster reserves the right to cooperate fully with law enforcement agencies in any investigation of alleged illegal activity regarding the use of the Services.
22.6. Time to File Claim
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Services or under these Terms must be filed by either party within two (2) years after the event giving rise to such claim or cause of action arose or be forever barred.
The section titles in these Terms are for convenience only and have no legal or contractual effect.
You may not assign these Terms or any of your rights or obligations under these Terms to a third party without the prior written consent of Kickbooster. Kickbooster may assign the Terms or its rights or obligations under these Terms to any party at any time without notice to you. Subject to the foregoing, these Terms shall enure to the benefit of and be binding upon you and Kickbooster and your/its respective successors (including any successor by reason of amalgamation) and assigns.
It is the express wish of the parties to these Terms that these Terms and all related documents be drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.