Terms of Service

Subject to these Terms of Service (this "Agreement"), Kicker Software Corp. ("Kicker", "we", "us" and/or "our") provides access to Kicker's cloud platform as a service, including collectively, the "Services". By using or accessing the Services, you acknowledge that you have read, understand, and agree to be bound by this Agreement. If you are entering into this Agreement on behalf of a company, business or other legal entity, you represent that you have the authority to bind such an entity to this Agreement, in which case the term "you" shall refer to such entity. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services IMPORTANT: PLEASE REVIEW THE MUTUAL ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH KICKER ON AN INDIVIDUAL BASIS (WAIVING YOUR RIGHT TO A CLASS ACTION) THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS MUTUAL ARBITRATION AGREEMENT AND HAVE TAKEN THE TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. THIS AGREEMENT ALSO CONTAINS RELEASES, LIMITATIONS ON LIABILITY, AND PROVISIONS ON INDEMNITY AND ASSUMPTION OF RISK, ALL OF WHICH MAY LIMIT YOUR LEGAL RIGHTS AND REMEDIES. PLEASE REVIEW THEM CAREFULLY

1. 1. Age and Eligibility. You certify that you are a person at least 18 years of age. Services may only be used or accessed through an electronic device controlled by you at all times. A valid Kicker account may only be created and maintained if you provide valid information in the signup process, and you regularly update such information to assure its accuracy. You shall be responsible for maintaining the confidentiality of login information associated with your account. Each user must have unique login credentials that must not be shared by multiple users. You are responsible for all activities that occur under your account
2. 2. Temporary Use License. During the period for which you are authorized to use the Services, and subject to your compliance with the terms of this Agreement, you are granted a personal, non-sublicensable, non-exclusive, non-transferable, limited license, to use the Services for your internal business or personal purposes according to the service capacity of your account. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Kicker or any third-party is granted to you in connection with the Services. Kicker shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto and (b) all intellectual property rights related to any of the foregoing.
3. 3. Your Content. You are responsible for maintaining the confidentiality of usernames and passwords associated with your account and for all activities that occur under your account. Kicker reserves the right to access your account in order to respond to your requests for technical support. By posting Your Content on or through the Services, you grant Kicker a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, copy, modify, reproduce, distribute, display, publish, store and perform Your Content only in connection with its provision of the Services and for security to protect the Services and third parties from fraud, malware, malicious files or content, viruses and the like. You further agree that Kicker may remove or disable any of Your Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third-parties or authorities relating to Your Content), or for no reason at all
4. 4. Hobby Plan. We offer a free hobby plan at our sole discretion. You shall only use the Services under a hobby plan for your personal or non-commercial use. We may change the terms and conditions applicable to the hobby plan or discontinue offering the hobby plan at any time. We reserve the right to disable or remove any account on the hobby plan with or without notice at our sole discretion. We may shut down and terminate accounts using the hobby plan without notice for any reason or no reason. We may shut down affected accounts on the hobby plan in case of any delays or performance problems including, without limitation, those caused by a malicious attack
5. 5. Acceptable Use. The Services may only be used for lawful purposes. You shall not attempt to undermine the security or integrity of computing systems or networks of Kicker, its partners, or any other person, and must not attempt to gain unauthorized access. The network resources of Kicker may not be used to impersonate another person or misrepresent authorization to act on behalf of others or Kicker. You must not introduce software or automated agents or scripts into Kicker's website in order to produce multiple accounts, generate automated searches, requests or queries, or to strip or mine content or data from Kicker's website. You must not access Kicker's website through automated methods, including any use of robots or other computer code which calls Kicker's website. You shall not send unsolicited messages or use the Services to send unsolicited messages (also known as junk mail or SPAM). You shall not use the Services to reproduce the functionality of Kicker Services. You may not rent, lease, loan, or sell access to, or otherwise attempt to transfer any right in Kicker's website (which includes its software and documentation) to a third-party, through framing or any other method. You must not interfere with or disrupt the Services or create an undue burden on Kicker's website or the networks or services connected to Kicker's website. You may not use the services or Kicker's infrastructure for proxying, scraping, to create virtual private networks, or to create virtual private servers. You must not perform any benchmark tests or analyses relating to Kicker's website or Services without express permission from Kicker. The final decision of whether an account is in violation of any of these acceptable use terms is at the sole discretion of Kicker. You agree that violations of this Agreement by yourself or any person or entity acting under your account will, in addition to any other remedies including criminal prosecution, result in termination of your access to Kicker's website and removal (taking down) of all accounts. In addition, violation of these terms or any of Kicker's policies may result in tracking information being stored to identify the offending person, and permanent restriction from holding an account on Kicker's website and Services
6. 6. Etiquette. Without limiting any terms of this Agreement, you shall not use the Services for, or in conjunction with, a website (including links from a website) that has any content that may be objectionable (as determined in Kicker's sole discretion), abusive, profane, hate speech or violates any applicable law. You hereby agree to indemnify and hold Kicker harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any third party claim or action that arises from an alleged violation of the foregoing or otherwise from your use of Services in a manner not authorized by this Agreement. Although Kicker has no obligation to monitor your use of the Services, Kicker may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. YOU ACKNOWLEDGE THAT KICKER MAY DISABLE OR TERMINATE THE SERVICES IF KICKER BELIEVES THERE IS ANY CONTENT THAT VIOLATES THIS AGREEMENT, INCLUDING THE ACCEPTABLE USE TERMS AND THE RESTRICTIONS ABOVE
7. 7. Privacy Policy. Please visit https://getkicker.ai/privacy-policy to understand how Kicker collects and uses your information
8. 8. Usage Restrictions. You will not, directly or indirectly: (i) sublicense, resell, rent, lease, transfer, assign, or otherwise commercially exploit or make the Services available to any third party; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (where reverse engineering is permitted by applicable law obtaining such information as is necessary to achieve interoperability with Kicker's services, you must first request such information from Kicker); (iii) modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Kicker or authorized within the Services) or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (iii) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third-party; or remove any proprietary notices or labels; (iv) remove, alter or obscure in any way any proprietary rights notices (including copyright notices) of Kicker or its suppliers on or within the Services or documentation; (v) violate any applicable laws or regulations (including without limitation in violation of any data, privacy or export control laws) or infringe the rights of any third-party in connection with the use or access of the Services. You shall comply with any codes of conduct, policies or other notices, Kicker provides you or publishes in connection with the Services, and you shall promptly notify Kicker if you learn of a security breach or issue related to the Services. Without limiting the foregoing, you acknowledge that Kicker may establish general practices and limits concerning use of the Services. You further acknowledge that Kicker reserves the right to change these general practices and limits at any time, in its sole discretion.
9. 9. Support. Subject to the terms hereof, Kicker may, but is not required to, provide you with commercially reasonable remote technical support services during Kicker's normal business hours ("Support Services")
10. 10. Electronic Communications. By using the Services, you consent to receiving electronic communications from Kicker. These electronic communications may include notices about applicable Services fees and charges related to the Services and transactional or other information concerning or related to the Services. They may also include notices that require responses and or action to avoid service interruptions. These electronic communications are part of your relationship with Kicker and you receive them as part of your use of the Services. Your account email address must be kept current and maintain a responsive user at all times. You agree that any notices, agreements, disclosures or other communications that Kicker sends you electronically will satisfy any legal communication requirements, including that such communications be in writing
11. 11. Representation and Warranties - Representations. You represent and warrant that (i) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in posting and other activities (and allow Kicker to perform its obligations) in connection with the Services without obtaining any further releases or consents; (ii) Your Content and other activities in connection with the Services, and Kicker's exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party's copyright, trademark, right of privacy, or publicity, or other personal or proprietary right and Your Content is not defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iii) you will use the Services only in compliance with Kicker's standard published policies and documentation then in effect and all applicable laws and regulations - Mutual Warranty. Each party represents and warrants to the other that it has full right and power to enter into and perform under this Agreement, without any third-party consents or conflicts with any other agreement
12. 12. Indemnification. You will indemnify and hold harmless Kicker against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this Agreement, any claim of infringement or misappropriation arising out of your websites or any of Your Content, or your other access, contribution to, use or misuse of the Services. Kicker shall provide notice to you of any such claim, suit or demand. Kicker reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Kicker's defense of such matter
13. 13. Confidentiality; Proprietary Rights. - Confidentiality. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical, product or financial information or data relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Kicker includes non-public information regarding features, functionality and performance of the Services. Your Proprietary Information includes non-public personal data provided by you to Kicker to enable the provision of the Services and that you upload to the Services (collectively, "Your Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without confidentiality restrictions by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party as evidenced by its internal files. If a Receiving Party is required by law or a governmental agency to disclose the Disclosing Party's Proprietary Information, the Receiving Party must provide reasonable notice to the Disclosing Party of such required disclosure so as to permit the Disclosing Party a reasonable period of time to seek a protective order or limit the amount of Proprietary Information to be disclosed - Use of Your Data. You shall own and retain all right, title and interest in and to Your Data. Kicker may use and disclose Your Data solely to the extent necessary to provide the Services to you and for security to protect the Services and third parties from fraud, illegal activities, malware, malicious files or content, viruses and the like and for no other purpose. Otherwise, Kicker will not sell, disclose, or share any Your Data (or any part or product thereof) with anyone else. Kicker will implement and maintain reasonable information security policies and processes (including technical, administrative and physical safeguards) that are designed to prevent unauthorized access to or use or disclosure of the Services or any Your Data - Company Ownership. Kicker shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto and (b) all intellectual property rights related to any of the foregoing - Feedback. To the extent you or any of your users provide any suggestions to Kicker regarding the functioning, features, and other characteristics of the Services, documentation, or other material or services provided or made available by Kicker ("Feedback"), you hereby grant Kicker a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully transferable, worldwide license (with rights to sublicense through multiple tiers of sublicenses) under all of your intellectual property rights, for Kicker to use and exploit in any manner and for any purpose - Aggregate Data. Kicker shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (excluding Your Data and data derived therefrom), and Kicker will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Kicker offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business - Customer Name. During the term of this Agreement, you grant Kicker a non-exclusive, royalty-free, fully-paid up license to use and reproduce your trademarks, trade names and logos in Kicker's marketing materials and website(s) and to indicate that you are a Kicker customer. Kicker will abide by any written trademark usage guidelines provided by you. All goodwill arising out of the use of your trademarks, trade names and logos shall inure to your benefit
14. 14. Payment of Fees. - Plans. The Services will be provided according to the plan level you select. There is a free hobby plan and there are paid self-service subscription plans ("self-service subscriptions"). For an enterprise license, you may contact Kicker separately. You may opt to upgrade or downgrade to any other plan level that Kicker offers at any time during the period of your plan; provided that a downgrade will not be effective until the next renewal date. For self-service subscriptions, additional Services added to your self-service subscription, you will be charged a fee and any applicable tax. Fees will be billed to the credit card or other payment account you provide in accordance with the billing terms in effect at the time a fee or charge is due and payable. You acknowledge and agree that Kicker will automatically charge your credit card or other payment account on record with Kicker in connection with your use of the Services: (i) in advance of each self-service subscription term, for the self-service subscription you have selected and any additional Services added to your self-service subscription; (ii) in arrears for any additional Services you have used or added to your self-service subscription during the prior self-service subscription term. The self-service subscription and any additional Services added to your self-service subscription will automatically-renew for the same term as the initial term. You represent and warrant to Kicker that all of your payment information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. If payment is not received or cannot be charged to your credit card or other payment account for any reason in advance, Kicker reserves the right to either suspend or terminate your access to the Services and terminate this Agreement and for domain registrations, Kicker may not register the domain or may allow the domain registration to expire. All fees are non-refundable, except as expressly stated otherwise in this Agreement - Payments. All payments shall be made in the currency of, and within the borders of Canada. You will pay all applicable taxes, duties, withholdings, backup withholding and the like; when Kicker has the legal obligation to pay or collect such taxes, the appropriate amount shall be paid by you directly to Kicker. If all or any part of any payment owed to Kicker under this Agreement is withheld, based upon a claim that such withholding is required pursuant to the tax laws of any country or its political subdivisions and/or any tax treaty between Canada and any such country, such payment shall be increased by the amount necessary to result in a net payment to Kicker of the amounts otherwise payable under this Agreement. You will reimburse Kicker any pre-approved and agreed upon costs. Kicker may change its fees and payment terms at its discretion; provided however, that such changes will not take effect for you until the start of the next payment period. Kicker will provide written notice to you for any changes to the fees that affect the Services purchased by you. Your continued use of the Services after the price change becomes effective constitutes your agreement to pay the changed amount
15. 15. Term and Termination. - Term. Subject to earlier termination as provided below, the term of this Agreement will commence on your acceptance of this Agreement and will continue for as long as the Services are being provided to you under this Agreement. The term of your hobby plan, self-service subscription, and any Services purchased or added to your self-service subscription, shall automatically renew for successive terms equal in duration to the initial term unless you cancel your hobby plan or self-service subscription in advance of the renewal date. You have the right to terminate your account at any time by sending a cancellation request to Kicker Support via service@getkicker.ai. Such termination will be effective at the start of the next renewal period. Subject to earlier termination as provided below, Kicker may terminate your account and this Agreement at any time by providing thirty (30) days prior notice to the administrative email address associated with your account. In addition to any other remedies Kicker may have, Kicker may also terminate this Agreement upon ten (10) days' notice (or two (2) days in the case of nonpayment), if you breach any of the terms or conditions of this Agreement. Kicker may terminate your account and this Agreement immediately if you exceed any Kicker limits concerning use of the Services. You acknowledge that Kicker reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof). All of Your Content on the Services (if any) may be permanently deleted by Kicker upon any termination of your account in its sole discretion. If Kicker terminates your account without cause and you have signed up for a self-service subscription, Kicker will refund the pro-rated, unearned portion of any amount that you have prepaid to Kicker for such Services. - Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, Sections 12.1 and 12.2, and accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability - Effect of Termination. Upon the termination of this Agreement for any reason: (i) the licenses granted under this Agreement in respect of the Services shall immediately terminate and you and your users shall cease use of the Services; (ii) Kicker will cease providing any Support Services; (iii) you shall pay to Kicker the full amount of any outstanding fees due hereunder; and (iv) within fourteen (14) calendar days of such termination, each party shall destroy or return all Proprietary Information of the other party in its possession or control, and will not make or retain any copies of such information in any form, except that the receiving party may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement
16. 16. Disclaimer. THE SERVICES AND SUPPORT SERVICES ARE PROVIDED "AS IS" AND KICKER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. KICKER DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR DELIVERABLES
17. 17. Limitation of Liability. - Limit of Liability and Waiver of Consequential Damages. EXCEPT FOR YOUR BREACH OF SECTIONS 9, 14, AND 15, OR YOUR BREACH OF ANY REPRESENTATIONS OR WARRANTIES OR YOUR INDEMNITY OBLIGATIONS, NEITHER PARTY NOR ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES; OR (C) FOR ANY DIRECT DAMAGES, COSTS, LOSSES, OF LIABILITIES IN AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE GREATER OF ONE HUNDRED DOLLARS AND THE FEES PAID BY YOU TO KICKER FOR THE SERVICES UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER THIS AGREEMENT - Limits. Some provinces may not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE PROVINCES, KICKER'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW
18. 18. Miscellaneous. Kicker may change this Agreement from time to time by providing notice either by emailing the email address associated with your account or by posting a notice at https://getkicker.ai. You can review the most current version of this Agreement at any time at https://getkicker.ai/terms-of-service. The revised Agreement will become effective immediately after Kicker posts or sends you notice of such changes, and if you use the Services after that date, your use will constitute acceptance of the revised Agreement. If any change to this Agreement is not acceptable to you, your only remedy is to stop using the Services and send a cancellation email to Kicker Support via service@getkicker.ai. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. You may not assign, transfer or sublicense without the prior written consent of Kicker, but Kicker may assign or transfer this Agreement, in whole or in part, without restriction. Any attempted assignment or transfer of this Agreement by the parties in contravention of the foregoing shall be null and void. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all amendments must be in writing signed by both parties, except as otherwise provided herein. Kicker's failure to exercise or enforce any right or provision of this Agreement shall not be a waiver of that right. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Any delays in or failure of performance of Kicker shall not constitute a default hereunder or give rise to any claims for damages if, to the extent that, and for such period that, such delays or failures of performance are caused by any events beyond the reasonable control of Kicker including, without limitation, any of the following specific occurrences: acts of God or the public enemy, acts of terrorism, pandemics, epidemics, labor strikes, expropriation or confiscation of facilities, compliance with any unanticipated duly promulgated governmental order, acts of war, rebellion or sabotage or damage resulting therefrom, fires, floods, explosion, or riots
19. 19. Governing Law; Disputes; Arbitration. - Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada without regard to its conflict of laws provisions. - Binding Contract. You acknowledge that this Agreement is a contract between you and Kicker, even though it may be electronic and may not be physically signed by you and Kicker, and it governs your use of the Services. - Exclusive Jurisdiction and Venue; Arbitration.