Terms and Conditions
These Terms and Conditions of Use create a legal contract between you and us. Please read them.
Kicks And Ice LLC (“Kicks And Ice,” “we,” or “us”) operates a live marketplace that allows users to research, buy and sell certain consumer goods. These Terms and Conditions of Use, the Kicks And Ice Privacy Policy (the “Privacy Policy”), our Marketplace FAQs (the “FAQS”), and all policies and requirements posted on our sites, all of which are incorporated into these Terms and Conditions of Use by reference and as amended from time to time (collectively, “Terms”) describe the terms and conditions on which we provides our websites, services, data, software, applications (including mobile applications) and tools (collectively "Services") to you, whether as a guest or a registered user.
By using our Services, or by clicking to accept or agree to these Terms and the Kicks And Ice Privacy Policy when this option is made available to you upon registration, you accept and agree to be bound and abide by these Terms. If you do not want to agree to these, you must not access or use our websites or download or use our Services.
If you are under the legal age of majority for your jurisdiction, then you must have permission from your parent or guardian before using the Services. Any use or access to the Service by anyone under 13 years old is strictly prohibited and in violation of these Terms. You agree to comply with the Terms when accessing or using our Services. If you do not agree to the Terms, you are not permitted to use the Services.
These Terms and Conditions contain provisions that govern how claims between you and us are resolved. This includes an obligation to arbitrate certain claims through binding and final arbitration, unless you opt out of the arbitration when you sign up with us. Unless you opt out, you will only be permitted to bring claims against us and seek relief on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and you will only be permitted to seek relief on an individual basis.
Changes to Terms and Policies. Kicks And Ice may in our discretion change these Terms (including the Privacy Policy and the FAQs or any policy) without notice to you. Changes take effect when we post them on our sites. YOUR CONTINUED USE OF THE SITE AFTER WE CHANGE THESE TERMS CONSTITUTES YOUR ACCEPTANCE OF THE CHANGES. IF YOU DO NOT AGREE TO ANY CHANGES, YOU MUST CANCEL YOUR ACCOUNT.
Kicks And Ice Marketplace. Kicks And Ice provides a marketplace for buyers and sellers of certain consumer products. A description of the marketplace process and the rules applicable to buyers and sellers is on our FAQ page, as updated from time to time. To view or browse the marketplace, you must create an account using an email address and password or other account creation tools offered on the Services, such as a social media account. To offer items for sale (“Sell”) or offer to purchase items (“Buy”), you must create an account and have a valid credit card or other approved payment method on file with us. You agree that we may charge your credit card or other payment method for amounts you owe as described in these terms, as well as any costs or losses arising from your violation of the Terms. When you register to create an account with us, you agree to provide accurate information about yourself and must not register under a false name or age or use an unauthorized payment method. If you use any Service, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. Please review our other policies posted on this site which are part of the Terms and govern your use of the Services. We reserve the right to make changes to our site, policies, and the Terms at any time. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
Fees, Promotional/Discount Codes and Taxes. Fees for the Services are described in our FAQ, as updated from time to time. Kicks And Ice may sometimes furnish an alphanumeric code that can be used for promotions or discounts for purchases on our sites. These promotional or discount codes may be sent via email to our registered users, presented on our web sites or circulated at events and through other means and, unless otherwise provided are subject to the promotional or discount terms available here Discount Policy. As a seller you are responsible and agree to collect, pay, report and remit any and all local, state, provincial, federal, or international taxes (including VAT and sales tax) that may be due with respect to your sales transaction, and as a buyer you agree to pay any and all local, state, federal, or international taxes (including sales taxes) that may be due with respect to your purchase transaction. You agree that Kicks And Ice, as the facilitator of the transaction, is not responsible for reporting, collection or payment of any taxes on your behalf. You agree to provide Kicks And Ice with your Social Security Number, Social Insurance Number or other tax ID if necessary for Kicks And Ice to provide information to the Internal Revenue Service, Canada Revenue Agency or any provincial tax authority related to payments you receive from us and further authorize Kicks And Ice to release that information to the IRS, CRA, provincial tax authority or other competent governmental body.
Kicks And Ice’s Role. Although the Services include buy and sell functionality:
(1) Kicks And Ice facilitates the purchase transaction, but the actual purchase contract is directly between the buyer and seller;
(2) although Kicks And Ice might provide historical pricing data, we do not set prices for the items; and
(3) Kicks And Ice is not an auctioneer. Because sellers set prices, they may be higher than retail value. Any item valuations displayed through the Services are estimates only. Kicks And Ice does not guarantee that any item will sell. We reserve the right to investigate complaints and violations of these Terms and, to the extent permitted by applicable law, may take any actions we deem appropriate, including suspending your account and charging your credit card for costs we incur as a result of the violation. Although the Services are anonymous and we generally do not share your information with other buyers and sellers, we may share your information with law enforcement and other third parties as part of an investigation related to any alleged violation of law or these Terms, and we may respond to all inquiries initiated by law enforcement or other governmental agencies.
Authentication; Shipping and Handling. As part of the purchase transaction, the seller will ship the item to Kicks And Ice and Kicks And Ice will visually inspect the item and use commercially reasonable efforts to confirm it is authentic. If Kicks And Ice determines the item is authentic, Kicks And Ice will ship the item to the buyer. If Kicks And Ice cannot reasonably confirm the authenticity of the item or determines it is not authentic, then we will notify the buyer and the seller that the item is not authentic and will issue a refund to the buyer. Kicks And Ice policy requires sellers to ship items within two (2) business days of the purchase. However, because Kicks And Ice cannot control the amount of time it takes for the item to reach Kicks And Ice, we cannot guarantee a specific delivery time frame for any items. Once we receive the item from the seller it generally takes 1-2 business days for us to authenticate the item and ship it to a buyer. If a buyer does not receive an item, the buyer shall promptly report the issue to Kicks And Ice within 2 days of the latest estimated delivery date.
Counterfeits, Fraud, and Market Manipulation. Kicks And Ice takes counterfeiting, fraud and market manipulation very seriously. If a seller provides a counterfeit item or attempts to defraud any buyer or Kicks And Ice, Kicks And Ice reserves the right to do any or all of the following, in its sole discretion:
(i) remove any or all of seller’s listings from the Services;
(ii) cancel any or all of seller’s orders pending through the Services;
(iii) withhold any payments due to seller;
(iv) place limits on seller’s buying and selling privileges;
(v) charge seller’s credit card for costs, expenses and fees incurred by Kicks And Ice as a result of seller’s action or inaction, including charging seller for the cost of replacement items, the value of coupons and gift certificates provided to the buyer, reprinting fees incurred by Kicks And Ice, rerouting charges imposed by carriers, and refunds to the buyer;
(vi) ship the item back to the seller at the seller’s cost;
(vii) provide the counterfeit items to law enforcement or destroy the counterfeit items,
(viii) temporarily or permanently suspend seller’s account, and (ix) charge Seller’s credit card an additional amount equal to 15% of the transaction amount as a service fee. Seller hereby agrees that each of the foregoing remedies are reasonable and justified upon Kicks And Ice’s discovery of counterfeit items or fraudulent actions, even if those items or actions were not known by the Seller at the time to be counterfeit or fraudulent (e.g., negligent fraud). Seller understands and agrees that if we provide the counterfeit item to law enforcement, seller’s communications and any property claim with respect to that item must be solely with that law enforcement agency and not with us. We may also use fraud protection measures, including algorithms and automated systems to monitor for fraud, which might result in cancellation of listings or sales or account suspension. If this occurs in error please contact us at support@kicksandice.com. We may also require additional identification information from you if you engage in certain high-value transactions or high overall payment volumes through Kicks And Ice.
If a buyer receives an item that it believes to be counterfeit, the buyer must notify Kicks And Ice in writing within 3 days after receiving the item, and we will commence an investigation into the item. The buyer shall cooperate with us in the investigation and final disposition of the item, including providing photographs and other evidence of the item, providing the item to law enforcement, destroying the item, or delivering the item back to us, at our direction. If we elect to have the buyer destroy the item, the buyer shall provide reasonable proof of destruction to us. We will refund all fees and costs paid by the buyer for the item (including shipping and handling). In no event may a buyer resell any item (on Kicks And Ice or elsewhere) that is reasonably believed to be counterfeit.
Kicks And Ice may monitor the integrity of the Kicks And Ice marketplace and may take steps to protect the marketplace as determined by Kicks And Ice in its sole discretion (e.g., if Kicks And Ice believes a seller or buyer is engaging in market manipulation or fraud, including creating false or “dummy” accounts). If Kicks And Ice believes that a seller or buyer attempts to interfere with the free and fair operation of the Kicks And Ice marketplace, or creates artificial, false or misleading information, or information appearing to mislead with respect to pricing or demand for a product on the Kicks And Ice marketplace (all of the foregoing in Kicks And Ice’s sole discretion), then, without limiting any other rights of Kicks And Ice, Kicks And Ice reserves the right to do any or all of the following, in its sole discretion:
(i) remove any or all of the user’s listings from the Services;
(ii) cancel any or all of the user’s orders pending through the Services;
(iii) withhold any payments due to the user;
(iv) place limits on a user’s buying and selling privileges;
(v) charge user’s credit card for costs, expenses and fees incurred by Kicks And Ice as a result of the user’s actions;
(vi) notify law enforcement of the fraudulent activity;
(vii) temporarily or permanently suspend the user’s account, and
(viii) charge the user’s credit card an additional service fee of up to $1,000 to cover Kicks And Ice’s investigation fees and other related costs and expenses.
Seller Obligations. By listing an item for sale, you are making a binding offer to sell that specific item to a buyer who purchases the item for the price you have specified and to ship the item in accordance with our FAQ as updated from time to time. When a buyer accepts your offer by purchasing your item through our Services, you are contractually and legally bound to deliver that exact item for the specified price. SELLERS MUST SHIP items via the shipping carrier designated by Kicks And Ice within two (2) business days of the purchase. Kicks And Ice will provide you with a shipping label with such carrier after your listing is matched by a buyer. You are obligated to monitor your inventory and ensure all listings are accurate. Once a listing are matched, under no circumstances may a seller cancel the transaction. Failure to fulfill your orders will result in additional charges to you, including an additional charge equal to 15% of the transaction amount as a service fee. If a seller fails to deliver items to Kicks And Ice in accordance with this policy, Kicks And Ice reserves the right to do any or all of the following, in its sole discretion:
(i) charge seller’s credit card an additional amount equal to 15% of the transaction amount as a service fee;
(ii) remove any or all of seller’s listings from the Services;
(iii) cancel any or all of seller’s orders pending through the Services;
(iv) withhold any payments due to seller;
(v) place limits on seller’s buying and selling privileges;
(vi) charge seller’s credit card for costs, expenses and fees incurred by Kicks And Ice as a result of seller’s action or inaction, including charging seller for the cost of a replacement, coupons and gift certificates provided to the buyer, reprinting fees incurred by Kicks And Ice, rerouting charges imposed by carriers, and refunds to the buyer; and
(vii) temporarily or permanently suspend seller’s account.
As a seller, you are required to ensure that the item you are listing exactly matches the image on the listing page and meets the applicable Condition Standard. If Kicks And Ice or a buyer reasonably determines that your item does not conform to the description (including, without limitation, meeting the applicable Condition Standard), or is counterfeit, then we will charge your credit card an amount equal to 15% of the transaction amount as a service fee, plus additional amounts or, as determined in Kicks And Ice’s discretion, charging you for the cost of a replacement, coupons and gift certificates provided to the buyer, reprinting fees incurred by Kicks And Ice, rerouting charges imposed by carriers, and refunds to the buyer. Kicks And Ice has no obligation to return items that do not conform to the description (including, without limitation, meeting the applicable Condition Standard), or are counterfeit (in which case, Kicks And Ice may turn those items over to the proper authorities) at your cost. Kicks And Ice will pay you within thirty (30) days after the sale is complete, which occurs when the buyer receives the item. To get paid more quickly, ship your items immediately after your listing is matched by a buyer. You may also receive fee information via email notification when a listing goes live, is updated, or a trade occurs.
Buyer Obligations. As a buyer, you are obligated to pay for any items you purchase on when it matches a seller’s listing. WHEN YOU PLACE A PURCHASE, YOU ARE COMMITTING TO PURCHASE THE ITEM AS SOON AS YOUR PURCHASE MATCHES A SELLER’S PRICE. To be an eligible buyer you must have a billing address and shipping address within one of the countries that Kicks And Ice supports. If your address is outside the United States, then you will be responsible for paying all customs, duties, taxes and any other related fees in addition to the international shipping charges; you will be solely responsible for compliance with all customs requirements on import; and, when placing your order, you authorize us to appoint an agent to file the customs declarations on your behalf. In general, we charge your credit card immediately upon purchase and hold the funds in escrow until the transaction is complete, at which time we pay the seller. You will not receive any interest on the escrowed amount. You might be required to pay certain fees as described when placing your Purchase Order, as updated from time to time. If your payment fails or is rejected for any reason (e.g., purchase exceeds credit card limit, card is cancelled, chargeback is requested), Kicks And Ice reserves the right to do any or all of the following, in its sole discretion:
(i) charge buyer’s credit card an additional amount equal to 15% of the transaction amount as a service fee;
(ii) remove any or all of buyer’s Bids from the Services;
(iii) cancel any or all of buyer’s orders pending through the Services;
(iv) withhold refunds or payments due to buyer;
(v) place limits on buyer’s buying and selling privileges;
(vi) charge buyer’s credit card for costs, expenses and fees incurred by Kicks And Ice as a result of buyer’s action or inaction; and
(vii) temporarily or permanently suspend buyer’s account. ALL SALES ARE FINAL ONCE THE ITEM IS AUTHENTICATED AND DELIVERED, AND NO REFUND REQUESTS WILL BE HONORED. If you experience a problem with your purchase or an item, please contact us at support@kicksandice.com. If there is a problem with an item you received, you must contact us in writing within 3 days after receiving the item with a detailed description of the problem. Kicks And Ice verification tags or stickers that are attached to items must not be removed, or the items will not be eligible for return or exchange under any circumstance (including damage in transit).
Limitations and Restrictions. Kicks And Ice does not provide any guarantee that your items will sell and will not provide any compensation for items that do not sell through our services. Kicks And Ice also does not guarantee how long it will take for a listing to appear in the Services after it is posted and is not responsible for unsold items resulting from any listing delays. Kicks And Ice conducts periodic scheduled maintenance as well as unscheduled emergency maintenance from time to time. During maintenance periods the Services (or portions thereof) may be temporarily unavailable. You must not do any of the following: use our Services to solicit sales outside of Kicks And Ice or to contact any user of the Services; engage in abusive treatment of other users of the Services or any Kicks And Ice employee; use the Services for any illegal or unlawful purpose or activity, and you agree to comply with all applicable laws with respect to your access and use of the Services; use Kicks And Ice’s trademarks without our written permission; except to the extent permitted by applicable law (including the Copyright Act 1968 (Cth)), copy, reproduce, reverse engineer, modify, decompile, disassemble or otherwise attempt to derive source code from, create derivative works from, distribute, or publicly display any content (except for your information) or software from our Services without the prior express written permission of Kicks And Ice and the appropriate third party, as applicable; commercialize all or any part of the Kicks And Ice Services; use any robot, spider, scraper, or other automated means to access our Services for any purpose without our express written permission; take any action that imposes or may impose (to be determined in our sole discretion) an unreasonable or disproportionately large load on our infrastructure or otherwise interferes with the functioning of the Services;
bypass our robot exclusion headers, robots.txt rules or any other measures we may use to prevent or restrict access to our Services; or do anything else that we determine, in our sole discretion, misuses the Services or otherwise negatively impacts our marketplace.
Intellectual Property. You acknowledge and agree that
(i) our patents, copyrights, trademarks, service marks, trade secrets and other intellectual property (collectively, “Intellectual Property”) are our sole property, and
(ii) nothing in these Terms shall confer in you any right of ownership or license rights in our Intellectual Property. In addition, you shall not now or in the future contest the validity of our Intellectual Property. Without limiting the previous sentence, the Services, including without limitation all text, graphics, logos, buttons, icons, images, audio clips, and computer programs, are the property of Kicks And Ice or its licensors or suppliers, and are protected by U.S. and international copyright, trademark and other laws. The compilation (meaning the collection, arrangement, and assembly) of all content associated with the Services is the exclusive property of Kicks And Ice and protected by U.S. and international copyright law. Any unauthorized reproduction, modification, distribution, transmission, republication, display, or performance of the software or the content through our Services is strictly prohibited.
User Content. If you provide us with any text, graphics, photos or other materials or content (“User Content”), you grant us a non-exclusive, perpetual, transferable, irrevocable, assignable, royalty-free, fully paid up, sub-licensable (through multiple tiers) right and license to use, reproduce, distribute (through multiple tiers), create derivative works from, publicly perform, display, store, digitally perform, make or deliver digital audio transmissions, encode, transcode, publish (online, through the Services, on any other website(s), as well as through mobile channels, and offline, in print, radio, television or elsewhere), make, have made, sell, offer for sale, import and commercialize User Content, or any portion thereof, in any manner and context, in any way, in any and all media now known or hereinafter developed and on any device(s), whether or not portable, wired, or wireless, without limitation, throughout the universe. You further agree to waive your right to be identified as the author of User Content and your right to object to derogatory use or treatment of such User Content. If Kicks And Ice does decide, in its sole discretion, to attribute User Content to you, you hereby grant Kicks And Ice the right to use your name (and/or any user name), image, likeness, and/or photo with respect to such attribution, and you waive any claims (including, without limitation, any privacy or publicity rights claims) with respect to such use of your name, image, likeness and/or photos. You hereby agree to waive all claims of moral rights associated with being the author of User Content, and to consent to Kicks And Ice doing all acts that would otherwise constitute an infringement of your moral rights, as well as waive the right to inspect or approve the finished video, photograph, sound track, web site, advertising copy or printed matter that may be used in conjunction therewith or to the eventual use in any media that it might be applied. The rights you grant above are irrevocable during the entire period of the protection of your intellectual property rights associated with such User Content.
You agree that Kicks And Ice
(i) is not under any obligation, whether of confidentiality, attribution or otherwise, and will not be liable for any use or disclosure of any User Content;
(ii) is under no obligation to post, display or otherwise use any User Content;
(iii) has no obligation whatsoever to provide you any compensation for the use or display of your User Content or otherwise from the exercise of the rights granted under this Section, even if Kicks And Ice receives compensation therefrom;
(iv) has the right (but not the obligation) to monitor the User Content that you or third parties post, and to alter or remove any such User Content; and
(v) has the right to disclose User Content and the circumstances surrounding its transmission to any third party in order to operate the Services, to protect ourselves and third parties, and to comply with legal obligations or governmental requests.
You are prohibited from posting any libelous, obscene, defamatory, pornographic, or other materials that would violate any laws. You shall be solely responsible for your own User Content and the consequences of posting or publishing it.
You represent and warrant that any information you provide to us, to other users, or to visitors, including but not limited to User Content,
(a) is not false, inaccurate, misleading, obscene or defamatory;
(b) is not fraudulent;
(c) doesn't involve the sale of counterfeit or stolen items;
(d) doesn't infringe any third party's copyright, patent, trademark, trade secret, rights of publicity or privacy, or other right;
(e) is yours or you have the necessary licenses, rights, consents, and permissions to such information and to grant the rights and licenses to Kicks And Ice under all patent, trademark, trade secret, copyright or other proprietary or intellectual property rights in and to any and all such information in the manner contemplated in these Terms;
(f) doesn't violate any law, statute, ordinance or regulation, including without limitation those governing consumer protection, unfair competition, anti-discrimination or false advertising; and,
(g) doesn't contain any viruses or any programming that is intended to damage, interfere with, intercept or expropriate any system, data or personal information; and
(h) is not intended to circumvent or violate the letter and spirit of these Terms and the lawful functioning of Kicks And Ice's marketplace.
You further represent and warrant that you have the written consent, release, and/or permission of each and every person identified in any information you provide, including but not limited to User Content, to use the name or likeness of such person or, if such persons are minors, the written consent, release, and/or permission of such minor's parent or legal guardian.
By submitting ideas, suggestions, documents, and/or proposals (“Contributions”) to Kicks And Ice, you acknowledge and agree that:
(a) your Contributions don't contain confidential or proprietary information;
(b) Kicks And Ice isn't under any obligation of confidentiality, express or implied, with respect to the Contributions;
(c) Kicks And Ice shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media now known or later developed and throughout the universe;
(d) Kicks And Ice may have something similar to the Contributions already under consideration or in development;
(e) your Contributions automatically become the property of Kicks And Ice without any obligation of Kicks And Ice to you; and
(f) Kicks And Ice is free to use any ideas, concepts, or techniques that you send Kicks And Ice for any purpose, including but not limited to, developing and marketing products that incorporate such ideas, concepts or techniques; and
(g) you aren't entitled to any compensation or reimbursement of any kind from Kicks And Ice under any circumstances.
Indemnity. You shall indemnify, defend and hold Kicks And Ice and our affiliates and their respective officers, directors, agents and employees harmless against all liabilities, costs, interest and expenses (including reasonable attorneys' fees) incurred by Kicks And Ice that arise out of any third party or governmental claim or demand that involves, relates to or concerns
(a) your listing or sale of any counterfeit, stolen, or illegal merchandise or goods,
(b) your breach of any provision of the Terms,
(c) your improper use of Kicks And Ice's Services,
(d) your violation of any law or the rights of a third party, or
(e) federal, state, county, city, or other tax obligation or amounts due or owing under any tax regulation, law, order or decree.
Disclaimer of Warranties; Limitations of Liability. You covenant not to sue Kicks And Ice, and agree that you will not hold Kicks And Ice responsible, for other users' content, actions, or inactions. Kicks And Ice is a marketplace for consumer goods. You acknowledge that you are buying items from a third party, not Kicks And Ice. While we may help facilitate the resolution of disputes, we have no control over and do not guarantee the accuracy, quality, safety, truth, accuracy or legality of User Content, listings, and/or items listed or sold. If you have a dispute with one or more users, as a buyer or seller, you release and covenant not to sue Kicks And Ice, its affiliated companies, and our and their respective officers, directors, agents, joint venturers, employees, legal representatives, and suppliers from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute. In entering into this release you expressly waive any protections that would otherwise limit the coverage of this release to include only those claims, which you may know or suspect to exist in your favor at the time of agreeing to this release.
SUBJECT TO THE FOLLOWING PARAGRAPH, YOU AGREE THAT YOU ARE MAKING USE OF Kicks And Ice'S SERVICES ON AN 'AS IS' AND 'AS AVAILABLE' BASIS. Kicks And Ice (INCLUSIVE OF ANY OF ITS SERVICE PROVIDERS AND LICENSORS) MAKES NO WARRANTY WITH RESPECT TO ITS SERVICES, ANY ITEMS, ANY USER CONTENT, OR THAT SELLERS OR BUYERS WILL PERFORM AS PROMISED. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXCLUDE ALL EXPRESS OR IMPLIED WARRANTIES, TERMS AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE ARE NOT LIABLE AND YOU AGREE NOT TO HOLD Kicks And Ice RESPONSIBLE FOR ANY DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO: LOSS OF MONEY, GOODWILL OR REPUTATION, PROFITS, OR OTHER INTANGIBLE LOSSES OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES) RESULTING DIRECTLY OR INDIRECTLY FROM
(A) ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES;
(B) LOSS OF: PROFITS, GOODWILL OR REPUTATION, PROFITS, OR OTHER INTANGIBLE LOSSES;
(C) DAMAGES RELATING TO:
- (I) YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES;
- (II) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING OUR SERVICES OR THOSE OF ANY SITE, SERVICES, OR TOOLS LINKED TO OUR SERVICES;
- (III) ANY USER CONTENT OR CONTENT OF THIRD PARTIES, OR (IV) THE DURATION OR MANNER IN WHICH ITEMS YOU LIST APPEAR ON THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, SO SUCH DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU. THE LIMITATIONS ON Kicks And Ice’S LIABILITY CONTAINED IN THESE TERMS ARE MADE TO THE FULL EXTENT PERMITTED BY LAW. NOTHING IN THESE TERMS RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW OR ANY OTHER RIGHTS OR REMEDIES WHICH CANNOT BE EXCLUDED, RESTRICTED, OR MODIFIED. SUBJECT TO THOSE LAWS, TO THE EXTENT TO WHICH Kicks And Ice IS ENTITLED TO DO SO, ITS LIABILITY UNDER SUCH IMPLIED CONDITIONS OR WARRANTIES OR OTHER RIGHTS OR REMEDIES, SHALL BE LIMITED AT ITS OPTION TO THE SUPPLYING OF THE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN. IF THE FOREGOING DOES NOT APPLY AND WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES IN DISPUTE NOT TO EXCEED THE TOTAL FEES WHICH YOU PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, OR (B) $100.
Disputes with Kicks And Ice.You and Kicks And Ice agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of the Terms or your use of, or access to, Kicks And Ice's Services, will be resolved in accordance with the provisions set forth in this Section 14. Please read this Section carefully. It affects your rights and will impact on how claims you and we have against each other are resolved.
You agree that the laws of the State of New York, without regard to principles of conflict of laws, will govern these Terms and any claim or dispute that has arisen or may arise between you and Kicks And Ice. Legal notices shall be served on Kicks And Ice's national registered agent (in the case of Kicks And Ice) or your email address on file with us (in your case). Notice by us to you shall be deemed given twenty-four (24) hours after the email is sent. Alternatively, we may give you legal notice by mail to the physical address you have on file with us. In such case, notice shall be deemed given three (3) days after the date of mailing, regardless of whether any such notice is returned to us. It is your responsibility to keep your contact information updated.
You and Kicks And Ice each agree that any and all disputes or claims that have arisen or may arise between you and Kicks And Ice relating in any way to or arising out of the Terms or your use of or access to Kicks And Ice's Services, shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court or tribunal located in your jurisdiction, if your claims qualify. IN ALL EVENTS, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THESE TERMS AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
a.Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND Kicks And Ice AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND Kicks And Ice AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER Kicks And Ice USERS.
b.Arbitration Procedures. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual; and an arbitrator must also follow the terms of the User Agreement, as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), shall be for a court of competent jurisdiction to decide. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of the User Agreement including, but not limited to, any claim that all or any part of this Agreement to Arbitrate or the User Agreement is void or voidable. The arbitration will be conducted by the American Arbitration Association ('AAA') under its rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute ("Notice"). A Notice to Kicks And Ice should be sent to 135 Spagnoli Rd. Melville, NY 11747. Kicks And Ice will send any Notice to you to the physical address we have on file associated with your Kicks And Ice account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought. If you and Kicks And Ice are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Kicks And Ice may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's website at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Kicks And Ice at the following address: 135 Spagnoli Rd. Melville, NY 11747. In the event Kicks And Ice initiates arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Kicks And Ice account. Any settlement offer made by you or Kicks And Ice shall not be disclosed to the arbitrator. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Kicks And Ice may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Kicks And Ice subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Kicks And Ice may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Kicks And Ice users, but is bound by rulings in prior arbitrations involving the same Kicks And Ice user to the extent required by applicable law. The arbitrator's award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
c.Costs of Arbitration. Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, Kicks And Ice will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Kicks And Ice should be submitted by mail to the AAA along with your Demand for Arbitration and Kicks And Ice will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of accessing arbitration will be prohibitive as compared to the costs of accessing a court for purposes of pursuing litigation on an individual basis, Kicks And Ice will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the costs of accessing arbitration from being prohibitive. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Kicks And Ice for all fees associated with the arbitration paid by Kicks And Ice on your behalf that you otherwise would be obligated to pay under the AAA's rules.
d.Severability. With the exception of any of the provisions in subsection (a) of this Agreement to Arbitrate, if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If an arbitrator or court decides that any of the provisions in subsection (a) of this Agreement to Arbitrate ('Prohibition of Class and Representative Actions and Non-Individualized Relief') is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the User Agreement will continue to apply.
e.Opt-Out Procedure. You can choose to reject this Agreement to Arbitrate ('opt out') by mailing us a written opt-out notice ('Opt-Out Notice'). The Opt-Out Notice must be postmarked no later than 30 days after the date you accept the User Agreement for the first time. You must mail the Opt-Out Notice to 135 Spagnoli Rd. Melville, NY 11747.
For your convenience, we are providing an Opt-Out Notice form you must complete and mail to opt out of the Agreement to Arbitrate. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street number and address, city, state, and zip code), phone number and the email address(es) used to log in to the Kicks And Ice account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the User Agreement will continue to apply. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
f.Future Amendments to the Agreement to Arbitrate. Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than a change to any notice address or website link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding between you and Kicks And Ice prior to the effective date of the change. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Kicks And Ice. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on http://www.KicksAndIce.com at least thirty (30) days before the effective date of the amendments and by sending notice via email to your email address on file with us. If you do not agree to the amended terms, you may close your account within the thirty (30) day period and you will not be bound by the amended terms. DMCA Notice. If you're a copyright owner or an agent of a copyright owner and believe that any User Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ('DMCA') by providing Kicks And Ice's Copyright Agent with the following information in writing, (pursuant to 17 U.S.C 512(c)(3)):
a.The physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b.Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
c.Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit Kicks And Ice, the service provider, to locate the material;
d.Information reasonably sufficient to permit Kicks And Ice to contact you, such as an address, telephone number, and, if available, an email address;
e.A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
f.A statement, under penalty of perjury, that the information in the notification is accurate that you're authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You must provide notice of claimed infringement to Kicks And Ice's designated Copyright Agent at 135 Spagnoli Rd. Melville, NY 11747, email: copyright@Kicksandice.com. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your User Content, you may send a counter-notice containing the following information to the Copyright Agent at the address(es) listed above:
a.Your physical or electronic signature;
b.Identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled;
c.A statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification; and
d.Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in New York, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by Kicks And Ice's Copyright Agent, Kicks And Ice may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed User Content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the User Content provider, member or user, the removed User Content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at Kicks And Ice's sole discretion.
Electronic Communications. When you use the Services, or send e-mails, text messages, and other communications from your computer or mobile device to us, you are communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages on this site and you can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
General. These Terms and Conditions, together with all additional Terms, constitute the entire agreement between you and Kicks And Ice relating to your use of our Services. You consent to receive notice by email to the address provided at registration. If any provision of the Terms are held to be invalid or unenforceable under any circumstances, its application in any other circumstances and the remaining provisions of the Terms shall not be affected. Kicks And Ice may assign or transfer our rights and obligations under these Terms at any time. You may not assign or transfer your rights or obligations under these Terms, or any of your rights or obligations, without the prior written consent of Kicks And Ice, which we can refuse in our sole discretion. No agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship is intended or created by these Terms, your use of the Services, or the provision of our Services. The terms and conditions set forth in these Terms are for your benefit only, not for the benefit of any third party except for Kicks And Ice's permitted successors and assigns. By using the Kicks And Ice website or acting as a buyer or seller you expressly agree to the governing law and venue provision of these Terms, irrespective of the state or country in which you reside. The parties each hereby disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods.