Terms and Conditions

PLEASE READ THIS AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES (as defined below) OFFERED BY KICKFIN INC. (“KICKFIN”).  by ACCESSING OR using OUR MOBILE APPLICATION, ONLINE SERVICES, OR WEBSITES (THE “SERVICES”) in any manner, you (“MERCHANT”) agree that you have read and agree to be bound by and a party to the terms and conditions of this agreement to the exclusion of all other terms.  if the terms of this agreement are considered an offer, acceptance is expressly limited to these terms.  if you are ACCEPTING this agreement on behalf of an organization, you represent that you have authority to do so.

kickfin is constantly trying to improve the Services, so these Terms may need to change along with the Services.  kickfin reserves the right to change the Terms at any time, but if kickfin does, it will first bring it to merchant’s attention by placing a notice on www.kickfin.com, by sending merchant an email, and/or by some other means. If merchant doesn’t agree with the new Terms, it is free to reject them; however, that means merchant will no longer be able to use the Services. If merchant uses the Services in any way after a change to the agreement is effective, then merchant agrees to all of the changes.

Except for changes by kickfin as described here, no other amendment or modification of these Terms will be effective unless in writing and AGREED by both parties.

  1. Definitions.

Content means any content (including without limitation any text, photographs, videos, and text) Merchant or any of its salespersons, employees, contractors, or agents uploads, posts, transmits, or otherwise disseminates (or is posted, transmitted, or otherwise disseminated on behalf of Merchant) to users through the Website.

Effective Date means the date Merchant accepts this Agreement.

Rules shall mean applicable federal, state and local laws and regulations, the bylaws, rules, regulations and procedures issued by MasterCard, VISA, American Express, Discover, JCB, Diners, NACHA (National Automated Clearing House Association) and the bylaws, rules, regulations and procedures of a debit card network, as amended or supplemented from time to time.

Services(s) means the services described at www.kickfin.com/merchant-services.

Website means the www.kickfin.com website and domain name and all other websites and domain names affiliated with Kickfin and any other linked pages, features, content, or application services (including without limitation mobile application services) offered in connection therewith by Kickfin.

  1. Services; PROPRIETARY RIGHTS.

2.1 Services.  Subject to Kickfin’s and its third-party partner’s approval as well as Merchant’s compliance with all terms and conditions of this Agreement, Kickfin will make the Services available to Merchant. Merchant acknowledges that some Services (including, without limitation, those Services that may require the use of a third-party financial transaction device) will require Merchant to agree to a separate third-party written agreement. Kickfin reserves the right to change the features offered as part of the Services, or the features offered for any Subscription Level (as defined below), at any time, upon notice to Merchant.

2.2 Services License.  Subject to Merchant’s compliance with all terms and conditions in this Agreement, Kickfin grants Merchant for the term of this Agreement a limited, personal, nonexclusive, non-sublicensable, royalty-free, nontransferable (except as provided in this Agreement) license to access and use the Services for your internal business purposes only.  Except as expressly and unambiguously granted herein, no other right or license is granted.

2.3 Content License.  Subject to the limitations of the Kickfin’s Privacy Policy [insert link], Merchant hereby grants Kickfin a non-exclusive, worldwide, royalty-free, perpetual, irrevocable and transferable right to display the Content on the Services.  Kickfin reserves the right to (a) remove any Content at any time, for any reason, including, without limitation, if it believes, in its sole discretion, that such Content violates this Agreement in any manner and (b) reformat the Content in order to make it compatible with the Services.  Merchant represents, warrants, and covenants that it (x) has all necessary rights to grant the foregoing license, and to use, and allow Kickfin to use the name, likeness, and identifying information of any identifiable person in the Content in the manner contemplated by this Agreement and (y) that it will pay all royalties and other amounts owed to any third party due to its use of the Content, if any. 

2.4 Feedback.  Merchant may, at its discretion, provide feedback, suggestions, improvements, enhancements, and/or feature requests to Kickfin with respect to its use of the Services (“Feedback”).  Merchant shall and hereby does assign all right, title, and interest in and to Feedback to Kickfin.

2.5 Use of Name.  In addition to any rights granted with respect to Content under Section 2.3, Kickfin may use Merchant’s name and logo solely for the purposes of identifying Merchant as a Kickfin customer enrolled in Kickfin for Merchant.

2.6 Privacy. Kickfin takes the privacy of its users seriously.  For the current Kickfin Privacy Policy, please click here [insert link]. The Children’s Online Privacy Protection Act (“COPPA”) requires that online Services providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13.  Kickfin does not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us.  If Kickfin learns it has collected personal information from a child under 13, it will delete that information as quickly as possible.  If you believe that a child under 13 may have provided Kickfin personal information, please contact Kickfin at support@kickfin.com.

  1. RESTRICTIONS AND MERCHANT OBLIGATIONS.

3.1       Merchant shall not directly or indirectly use the Services or interact with the Services in any manner (a) to disassemble, decompile, reverse engineer or attempt to discover any source code of the Services (except to the extent that such a prohibition would be prohibited by law), (b) that infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party, (c) to copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any part of the Services, (d) that is harmful, fraudulent, deceptive, threatening, abusive, obscene, libelous, or otherwise objectionable, or that violates any law, statute, ordinance, or regulation, (e) that contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program, (f) that jeopardizes the security of your Kickfin account, (g) that violates the security of any computer network, or cracks any passwords or security encryption codes, (h) that runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (i) that “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means); or (j) permit any third party to engage in any of the foregoing proscribed acts.

3.2       During the term of the Agreement, Merchant shall permit Kickfin to (a) perform on-site inspections of Merchant’s primary location, and (b) inspect Merchant’s inventory, solicitation and sales materials, and any other information provided by Merchant on any application for use of the Services.

3.3       Merchant represents and warrants that any information provided to Kickfin pertaining to the subject matter of this Agreement shall be truthful and accurate. Any willful or negligent distribution of inaccurate or incomplete information to unduly benefit or enrich Merchant, circumvent the Rules or put Kickfin at financial or legal risk, Merchant will assume and will indemnify and hold harmless Kickfin for all direct and indirect liability and damages incurred by Kickfin in connection with or in any way relating to such action or omission.

3.4       Merchant may not use the Services if it listed as a prohibited type merchant, or sells any prohibited substance, listed in Exhibit 1.

3.5       During the term of this Agreement, Merchant shall notify Kickfin promptly in writing if Merchant becomes aware of (a) any information that would suggest Merchant is near insolvency or bankruptcy (voluntary or involuntary) or nearing a change in ownership or business, (b) any other adverse information about Merchant’s financial condition or of any information that would indicate that there may be uncollected fees, chargebacks, and refunds to cardholders or about noncompliance with the Rules by Merchant, or (c) any information indicating that Merchant’s acceptance of credit cards is other than the bona fide sale of products or services.

3.6       This Agreement to your use of all the Services, including the iOS applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:

  • Both you and Kickfin acknowledge that the Agreement is concluded between you and Kickfin only, and not with Apple, and that Apple is not responsible for the Application or the Content;
  • The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as it is applicable to the Services;
  • You will only use the Application in connection with an Apple device that you own or control;
  • You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
  • In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
  • You acknowledge and agree that Kickfin, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
  • You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Kickfin, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
  • You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
  • Both you and Kickfin acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
  • Both you and Kickfin acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof.
  1. EMPLOYEES AND CONTRACTORS

4.1       Merchant shall monitor the activities of its employees, agents, sub-agents,
and third party vendors, as applicable, to ensure that they do not engage in unfair, deceptive or abusive acts or practices. Merchant shall ensure that it has adopted effective internal controls designed to prevent unfair, deceptive or abusive acts or practices. Such controls will include, but shall not be limited to: (a) creating adequate process flowcharts to demonstrate adequate oversight of management functions and day-to-day processes, (b) establishing and updating appropriate written policies and procedures, (c) establishing and updating written monitoring and self-testing procedures, (d) conducting ongoing reviews of existing and subsequent disclosures for all products and services including customer agreements, fees and charges, and changes in terms, and (e) engaging in practices that are consistent with stated policies and procedures.

4.2       Merchant shall ensure that its salespersons, employees, contractors and agents comply with all of Merchant’s obligations under this Agreement, and shall be responsible and liable for their acts and omissions in breach thereof.

4.3       Merchant shall ensure that only its salespersons, employees, contractors and agents for whom Kickfin has created authorized accounts will use the Services.

  1. CONFIDENTIALITY

Each party (the “Receiving Party”) may receive business, technical, financial or other proprietary information, materials, and/or ideas from the other party (the “Disclosing Party”) during the term of this Agreement (“Confidential Information”).  Kickfin’s Confidential Information shall include, without limitation, details about the Services and its features and about potential pricing of paid services and the terms of this Agreement. The Receiving Party agrees to hold in confidence and not use (except to exercise its rights or fulfill its obligations hereunder) or disclose the Disclosing Party’s Confidential Information.  Confidential Information shall not include: (a) information that is or becomes publicly available through no fault of Receiving Party, (b) was in Receiving Party’s possession or known by it without restriction prior to receipt from the Disclosing Party, (c) was rightfully disclosed to Receiving Party by a third party without restriction, or (d) was independently developed by Receiving Party without use of any Confidential Information of the Disclosing Party.  The Receiving Party may make disclosures of Disclosing Party’s Confidential Information required by law or court order provided it uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order for the Confidential Information.

  1. INDEMNITY

Merchant will indemnify and hold Kickfin, its parents, subsidiaries, affiliates, officers, partners and employees harmless (including without limitation from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand due to or arising out of Merchant’s or its salespersons’, employees’, subcontractors’, or agents’ (a) breach of this Agreement, (b) violation of any law, rule, or regulation (including the Rules) related to the subject matter of this Agreement, or (c) negligence or willful misconduct.

  1. SUPPORT

Merchant may contact Kickfin via any of options available at www.kickfin.com/support. Kickfin will use commercially reasonable efforts to assist Merchant with any problems Merchant may be having with the Services, but Kickfin does not make any promises regarding response times, that it will be able to fix any such problems, or that the Services will be uninterrupted or error-free. Any suggestions by Kickfin regarding use of the Services shall not be construed as a warranty.

  1. PAYMENT; TAXES.

8.1       Beginning on the Effective Date and throughout the term of the Agreement, Merchant shall pay Kickfin or its designated third party the monthly subscription fee, if any, for the level of Services Merchant has selected during the registration period (such fee, the “Subscription Fee,” and such level, the “Subscription Level”). The Subscription Fees for each Subscription Level are available at www.kickfin.com/pricing.  Kickfin reserves the right to change the Subscription Fees for any Subscription Level at any time upon thirty (30) days prior notice to Merchant.

8.2       On the Effective Date, and thereafter on each monthly “anniversary” thereof, Kickfin or its designated third party will charge the Subscription Fee for the following month to the credit card provided to Kickfin by Merchant or through any other mutually agreed means.

8.3       If Merchant chooses to upgrade to a more-expensive Subscription Level at any time during the term of this Agreement, any incremental cost will be prorated over the remainder of the month during which such upgrade becomes effective.

8.4       Merchant shall bear and be responsible for any applicable federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes) relating to the subject matter hereunder, excluding taxes based upon Kickfin's net income.

  1. Warranty Disclaimer.

THE SERVICES IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.  NEITHER KICKFIN NOR ITS LICENSORS OR SUPPLIERS WARRANTS THAT THE SERVICES WILL MEET MERCHANT'S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TO THE FULLEST EXTENT PERMITTED BY LAW, KICKFIN HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

  1. Limitation of Liability.

EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, In no event shall KICKFIN (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF this agreement, regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERwise), for any (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY of data, loss or interruption OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF MERCHANT, REVENUES, PROFITS AND GOODWILL, AND TRADING AND INVESTMENT LOSSES, OR (D) damages, IN THE AGGREGATE, in excess of the greater of $1000 or the fees paid by Merchant hereunder in the SIX (6) MONTHS preceding the applicable claim, EVEN IF KICKFIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

  1. Term and Termination.

11.1     Term.  This Agreement shall commence on the Effective Date, and shall continue in effect unless terminated as permitted herein. 

11.2     Termination. 

  1. Except as otherwise provided in Section 8.5 or as separately agreed in writing, this Agreement may be terminated by either party at any time without cause with thirty (30) days prior written notice.
  2. Kickfin may immediately terminate this Agreement, and/or suspend any and all features of the Services, and/or Merchant’s access thereto, without prior notice or liability, if Merchant (or any of its salespersons, employees, subcontractors or agents) breaches any of the terms or conditions of this Agreement.

11.3     Effects of Termination.  Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that the following provisions shall survive: Section 1, 2.3, the second sentence of Section 2.4, Sections 4.2, 5, 6, and 8-12 (inclusive).

  1. 12.   General Provisions.

12.1     Entire Agreement.  This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement.  No waiver, consent or, except as expressly provided herein, modification of this Agreement shall bind either party unless in writing and signed by the party against which enforcement is sought.  The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights.  If any provision of this Agreement is determined to be illegal or unenforceable, 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. 

12.2     Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law provisions.  Unless waived by Kickfin in its sole discretion, exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in San Francisco, California, and both parties consent to the jurisdiction of such courts with respect to any such action.  In any action or proceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.

12.3     Notices.  Any notice or communication hereunder shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified above, or at such other address designated in a subsequent notice.  All notices shall be in English, effective upon receipt.

12.4     Assignment.  Merchant shall not assign this Agreement without Kickfin’s consent.  Kickfin may freely assign or transfer this Agreement (in whole or in part) without consent.

12.5     No Agency.  Notwithstanding anything else, the parties are independent contractors, and this Agreement does not create an agency, partnership, or joint venture.

12.6     Headings.  Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement.

EXHIBIT 1

PROHIBITED MERCHANTS AND PROHIBITED SUBSTANCES

Description

Description

Description

ANY BRAM/Brand Violation Merchant

Get Rich Quick / Business Opportunities

Pharmacies – MOTO / Internet

Any services considered illegal or prohibited by the card Associations, or State/Federal Law

Grey Market Satellite Dealers / Cable Box De- scramblers

Prepaid Phone Cards or Airtime Minutes for Cell Phones

Asset Protection/ Venture Capital

Internet Payment Service Providers; e.g. aggregator (Internet Billing for other Merchants). E-Wallets

Pyramid or suspected Pyramid Schemes

Credit Card/Personal Credit/ID Theft protection services

Any merchant with an open or on-going ADC Fraud and/or Compliance investigation

Sales or violations of Intellectual Property Rights (Trademark and Copyright infringements) (Counterfeit Merchandise)

Currency Exchange/FOREX Trading / Digital Currency/Bit Coins. Stock Market Trading and Individual Stock Consulting

Medical/Recreational Marijuana (Including related products / Business Types)

Sport Forecasting / Handicapping / Fantasy Sports

Debt collections / Collection Agencies

Merchant Service Packages

Timeshare Sales / Marketing / Recovery / Maintenance

Loan Modification / Debt Counseling / Restoration / Repair / Reduction / Consolidation

Merchant aggregators

Tobacco Sales –MOTO/Internet (Including E-cigarettes, Vaporizers, E-juice, Hookah & related products)

Direct Marketing-Travel Related services

MOTO / E-Com Drug Paraphernalia

Travel/Vacation Clubs with Memberships

Home-based massage business without valid license

Non US residents / Offshore/International Merchants

Wire Transfer Services (MOTO / Internet money orders)

Financial Aid / Scholarships / Grants

Magazines/Publications subscription packages (i.e. Magazine Clearing House & Subscription Centers)

Medical Discount Membership Plans

Gambling / Casino Chips / Lottery /
Sweepstakes / Betting

Adult Streaming & Video/Downloads. Escort Services/Phone Sex Operators.

Any merchant that does not meet the minimum security levels defined by PCIDSS or using a known vulnerable payment application, as published by the Card Companies & PCISSC

Pay Day Loans/Title Loans/Check Cashing (Any type of Predatory loan company)

Cyber Lockers

Online/Moto PC support/Repair

Online Auctions & Penny Bids

Negative Option Continuity

Outbound/Inbound Telemarketing

MO/TO Internet Psychic

Stock Market Trading and Individual Stock Consulting

Advanced Event Ticket Sales

Lead Generation

Extended Warranties & Contracts greater than 1 year

Direct Marketing/Subscription

Buying Clubs

Nutraceuticals (Straight Sale or Continuity)

Cruise Lines

PROHIBITED SUBSTANCES

The Prohibited Substances listed below, if sold by a Merchant, may result in the suspension of the Merchant’s use the Services:

HGH (Human Growth Hormone)

HCG (human chorionic gonadotropin)

THC (Tetrahydrocannabinol)

Ephedra

Deer Antler Extract

Nutraceuticals (i.e. Acai Berry, Green Tea Extract, Skin Creams, Diet Pills, Etc..)

Kava Kava

Kratom

E-Liquids (Products such as Green Fairy, Absinthe)

Any Hormone pills/Peptides

Salvia

Synthetic Cannabinoids (product names such as K2, Spice, Potpourri, etc.)

Synthetic Cathinones (Ingredients include methylenedioxypyrovalerone (MDPV),

mephedrone and methylone) they usually market themselves as “Bath Salts”, Plant Food”

“Jewelry Cleaner”, etc. and have product names such as Ivory Wave, Bloom, Vanilla Sky,

etc.)

Any type of Synthetic or natural Drug (including ones that try to imitate prescription

drugs, Example: Phentermine)

Any Substance/Drug considered Illegal by Federal and/or state laws

Any type of natural plant or herb that can cause hallucinogenic effects

Any Consumable Hemp Product