Welcome to the Kitkoo Service, which provides users with the ability to create and sell custom merchandise, apparel, and digital products (collectively “Merchandise” or “products”) and buyers with the ability to find and purchase high-quality, unique Merchandise. Throughout these Terms of Service, the terms “we,” “us,” and “our” refer to Kitkoo or its affiliates. By accessing or using the Kitkoo Service, you agree to be bound by these Terms of Service, as well as Kitkoo’s Privacy Policy and Acceptable Use Policy (collectively, the “Agreement”). If you do not agree to this Agreement, you are not authorized to use the Kitkoo Service. These Terms of Service apply to all of our products and services.
Please note that if you are located in Europe (including the United Kingdom), some sections of these Terms of Service do not apply to your use of the Kitkoo Service. Please see the Additional Terms for European Users below for additional terms which apply to your use of the Kitkoo Service.
Information You Provide: Certain features of the Kitkoo Service require registration. If you choose to register, you agree to provide and maintain accurate, current and complete information about yourself. Registration data and personal information about you are governed by our Privacy Policy.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. Please immediately notify Kitkoo of any unauthorized use of your password or account or any other breach of security. Kitkoo reserves the right to terminate accounts and/or listings that are inactive for six (6) months or more.
Multiple Member Accounts Prohibited: Operating and maintaining multiple member accounts is prohibited. If you have a legitimate business need for a second account, you can apply for an exception to this policy by following the process outlined in Kitkoo’s Creator Resources.
Misuse of Member Account: If you repeatedly upload excessive amounts of data, engage in fraud or other illegal activity, infringe any third party rights, fail to comply with the Terms of Service or any other Kitkoo policies, Kitkoo may, in its sole discretion, cancel your listings, suspend your use of Kitkoo tools and reports, restrict or terminate your account, and/or withhold and disburse any proceeds associated with that account.
Social Networking Services: You may enable certain components of the Kitkoo Service or log in to the Kitkoo Service via certain third party social networking services, such as Facebook (“Social Networking Services”). By logging in or directly integrating these Social Networking Services into the Kitkoo Service, we make your online tools and experiences richer and more powerful and personalized. To take advantage of these features and capabilities, we may ask you to authenticate, register for or log into those Social Networking Services. As part of such integration, the Social Networking Services will provide us with access to certain information that you have provided to such Social Networking Services, and we will use, store and disclose such information in accordance with our Privacy Policy. Please remember that Kitkoo has no control over the way Social Networking Services use, store and disclose your information. Please review their policies to understand their privacy-related practices. Kitkoo also has no control over the content made available through any Social Networking Service. Please review their policies to understand their content-related practices. Kitkoo does not have any liability or responsibility for the acts or omissions of any of the Social Networking Services accessed through the Kitkoo Service. Kitkoo enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
Promotions: Any contests, sweepstakes, surveys, games or similar promotions (collectively, “Promotions”) made available through the Kitkoo Service may be governed by specific rules that are in addition to these Terms of Service. By participating in any Promotion, you will become subject to those rules. To the extent that the terms and conditions of the Promotion rules conflict with these Terms of Service, the terms and conditions of the Promotion will control.
Age Requirement: If you are under 13 years of age, you are not authorized to use the Service. If you are under 18 years old, you may use the Kitkoo Service only with the approval of your parent or guardian.
Applicable Laws: In connection with your use of the Kitkoo Service, you will comply with all applicable laws, regulations and industry standards.
Communications: You agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Kitkoo Service. If we learn of a security system breach, we may attempt to notify you electronically by posting a notice on the Kitkoo Service or by sending an email to you. You acknowledge that communications you receive from Spring electronically satisfy any legal requirement that such communications be in writing.
Kitkoo Service allows sellers to create and sell custom physical and digital merchandise through product listings. By creating a listing through the Kitkoo Service, you represent and warrant that you own or are the licensee of all intellectual property or other proprietary rights necessary to create and implement the listing ("Listing Rights"), including any rights relating to the name, description, images, text, or URL used for the listing. You will provide Kitkoo with evidence of your Listing Rights upon request.
Following are specific obligations concerning the initiation of any listing. To the extent any:
Kitkoo Holdings does not claim any ownership rights in the content you upload to the Kitkoo Service. Please ensure that you maintain copies of all of your work. Kitkoo Holdings has no responsibility or liability for the deletion or failure to store any content or information uploaded to the Kitkoo Service.
For online events promoted by you through the Kitkoo Service, Kitkoo Holdings operates an online marketplace where Kitkoo Holdings customers can purchase event tickets. Kitkoo Holdings helps manage ticketing and registration on your behalf, however, Kitkoo Holdings is not the host, creator, or organizer of such online events. You agree that you are the organizer of your online events and are solely responsible for providing the event (including the third-party platform for hosting or streaming the event) and ensuring that the online event is delivered as described. You are also responsible for all activities related to your online events that take place off the Kitkoo Service, such as on any third-party streaming platform. Kitkoo Holdings retains all ownership rights in any designs created by Kitkoo Holdings designers, which may not be used by you, other than in connection with your listings on the Kitkoo Service, without Kitkoo Holdings express written consent.
For the purpose of implementing and fulfilling your listing and for the purpose of advertising the Kitkoo Service in any medium Kitkoo Holdings chooses, you hereby grant Kitkoo Holdings a nonexclusive, worldwide, fully paid up, transferable, sublicensable license under your Listing Rights to copy, display, distribute, modify the content you upload to the Kitkoo Service (including all related images, text, content, and information).
Kitkoo Holdings, in its sole discretion, may make promotional offers with different features and different pricing to any of Kitkoo Holdings' sellers. These promotional offers, unless made to you, will not apply to you or these Terms. For example, Kitkoo Holdings may make different digital product file types available to sellers who achieve a certain level of sales.
Acceptable Use: Your use of the Kitkoo Service, including the creation and implementation of product listings, is subject to these Terms of Service (including our Acceptable Use Policy).
National College Athletic Association (“NCAA”) and Other Amateur Organizations: If you are or may become subject to NCAA rules and regulations or those of any other association, group, authority, or organization, you represent and warrant that you have checked the rules and regulations to verify and confirm that your participation on our Site does not or will not affect your current or future eligibility with respect to any such association, group, authority, or organization.
Indemnity: To the extent any listing launched by you or launched via your Kitkoo account violates or is alleged to violate our Acceptable Use Policy or any other part of these Terms of Service, in addition to any other remedies, you agree that Kitkoo Holdings has the right to withhold and redirect any funds collected relating to the listing, which funds will be disbursed based on Kitkoo Holdings' internal policies (for example, Kitkoo Holdings may give the funds to a charity where a listing falsely states it is raising funds for that charity, or Kitkoo Holdings may apply such funds to any judgment or settlement, and/or the reimbursement of Kitkoo Holdings' expenses, resulting from a third party’s claim of infringement) and to control the defense or settlement of any claim or suit resulting from any such violation or alleged violation; and you agree to fully cooperate with Kitkoo Holdings in such activities. Without limiting the foregoing, you also agree to indemnify and hold Kitkoo Holdings, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any and all liabilities, losses, damages and expenses arising out of your violation or any alleged violation of our Acceptable Use Policy or any other part of these Terms of Service.
Quality of Artwork and Promotions: Each listing must meet reasonable production standards (e.g. a listing may not include a low-quality image that will not print well). All of your advertisements or promotional descriptions, including content that is uploaded to the Kitkoo Service, must be accurate and correct and must not include any content concerning non-Kitkoo activities, events, products, services, or promotions.
Proceeds from Listing: If you create a listing for products through the Kitkoo Service, Kitkoo Holdings will charge you a “base price” for each product that it makes available to you for your listing. You will be responsible for setting the price you charge consumers for each product. Once your listing is launched and products are sold, you will earn the difference between the base price and your sale price, less returns. You may request payout through your dashboard at any time. You are solely and fully responsible for payment of any income taxes applicable to the amounts you earn through the Kitkoo Service. Prior to receiving your payout, you may be required to provide additional information to Kitkoo Holdings as needed by Kitkoo Holdings to comply with its reporting obligations.
Partnership Disputes: If you work with other people on your listing, and there is a dispute between you and your partners, even though Kitkoo Holdings receives notice of the dispute, Kitkoo Holdings is entitled to make payouts and otherwise correspond with the original registrant. Alternatively, Kitkoo Holdings may withhold payouts until the dispute is resolved, in Kitkoo Holdings' sole discretion.
Charities/Fundraising: You represent and warrant that any listing you create that implicitly or explicitly relates to a charity or fundraising effort is authorized by such charity or fundraising effort, and you will ensure that your listing description clearly and accurately states the percentage of proceeds that will be donated and to whom those proceeds will be donated.
Kitkoo Holdings Right to Lower Sales Goal: You will be able to set the “sales goal” for each listing. You agree that Kitkoo Holdings may, in its sole discretion, begin to fulfill orders before your sales goal is met.
Infringement Claims Between Kitkoo Users, Waiver of Claims: By using the Kitkoo Service, you agree to submit any and all infringement claims against Kitkoo users (referred to as “Copycat Claims”) pursuant to Kitkoo's existing policies and procedures governing such claims. You also agree, as a condition of using the Kitkoo Service, to waive any and all claims against Kitkoo arising from alleged infringement by you or another Kitkoo user. Additionally, you acknowledge that Kitkoo may release your contact information to any Kitkoo user who satisfactorily alleges a violation of its rights under this section.
Infringement Claims by Third Parties: Kitkoo takes any allegations of infringement seriously. If Kitkoo receives any complaint or allegation that your listing or any resulting Merchandise constitutes an unauthorized use of a third party’s rights, you understand that Kitkoo may terminate or delay your listing, in its sole discretion. Additionally, you acknowledge that Kitkoo may release your contact information to any third party that satisfactorily alleges a violation of its rights.
Kitkoo will consider complaints of possible infringement only from parties that own, or have the exclusive right to exploit, the applicable intellectual property. If you believe that a Kitkoo user has infringed upon your rights, please notify Kitkoo through our Intellectual Property Claim page or contact us by mail at the address provided at the end of these Terms of Service, attention Legal Department.
You must include with your notification the following information:
Repeat Infringer Policy: Kitkoo has adopted a policy of terminating, in appropriate circumstances and at Kitkoo’s sole discretion, users who are deemed to be repeat infringers. Kitkoo may also at its sole discretion limit access to the Kitkoo Service or terminate the memberships of any users who infringe or violate any intellectual property or other rights of others, whether or not there is any repeat infringement or violation.
Order Confirmation: Where we accept your order, we will confirm such acceptance by sending you a dispatch confirmation email or email on which the digital product is available for download (Order Confirmation). The contract in relation to the Merchandise ordered (Contract) will only be formed when the Order Confirmation is sent. After entering into the Contract, we will be under a legal duty to supply you with goods and/or digital products that are in conformity with the Contract.
Creator Tools: Kitkoo offers certain Kitkoo Services for Creators (each a “Creator Tool”). The Creator Tools are optional services designed to help Creators maximize their sales performance. Each Creator Tool is offered on either a purchase or a subscription basis and subject to service-specific term and conditions. Creator Tools that are offered on a subscription basis shall be referred to herein as “Subscription Services”. Creator Tool purchases and subscriptions can be purchased and managed within and through the Creator’s dashboard by navigating to the individual Creator Tool pages.
Returns:
You acknowledge and agree that goods produced by us for you are bespoke, custom-made goods, they are produced specifically for you once you place an order. We do not hold stock and would not, but for your order, have produced the goods. You further agree that you do not have a right to change your mind with respect to digital products purchased by you. Other than where goods, including digital products except for NFTs, are faulty, you have no right to cancel any order or return any goods and all orders are final. Nothing in this section affects your legal rights.
Waiver:
Your purchase of an item using the Kitkoo Service constitutes a waiver of any and all intellectual property, proprietary, personal, and privacy claims relating to that purchase.
D. Purchasing of Merchandise or Creator Tools (continued)
Order Confirmation: Where we accept your order, we will confirm such acceptance by sending you a dispatch confirmation email or email on which the digital product is available for download (Order Confirmation). The contract in relation to the Merchandise ordered (Contract) will only be formed when the Order Confirmation is sent. After entering into the Contract, we will be under a legal duty to supply you with goods and/or digital products that are in conformity with the Contract.
Creator Tools: Kitkoo offers certain Kitkoo Services for Creators (each a “Creator Tool”). The Creator Tools are optional services designed to help Creators maximize their sales performance. Each Creator Tool is offered on either a purchase or a subscription basis and subject to service-specific term and conditions. Creator Tools that are offered on a subscription basis shall be referred to herein as “Subscription Services”. Creator Tool purchases and subscriptions can be purchased and managed within and through the Creator’s dashboard by navigating to the individual Creator Tool pages.
Online Events:
Kitkoo operates a service enabling you to purchase tickets for online events organized by event sellers. Kitkoo helps manage ticketing and registration for online events promoted through the Kitkoo Service on behalf of event sellers, however Kitkoo is not the host, creator, or organizer of any online event posted by a seller. The seller is the organizer of the online event and is responsible for providing the event (including the third-party platform for hosting or streaming the event) and ensuring that the online event is delivered as described. You acknowledge that Kitkoo is not responsible for online events that take place off the Kitkoo Service. You are responsible for providing a valid email address for delivery of tickets and ensuring you are able to receive delivery of the tickets. Kitkoo shall not be liable for, and you will not be entitled to any refund where delivery is failed as a result of your failure to provide correct and complete information.
Tickets may be sold subject to certain restrictions. Any such restrictions will be displayed or otherwise notified to you before or at the time of booking. It is your responsibility to ensure that you read all notifications and other information displayed or notified to you as part of the purchase process. You may not resell or transfer your tickets. If an event is cancelled, rescheduled or materially altered, we will use reasonable endeavors to notify you once we have received the relevant information and authorization from the relevant event seller. Nothing in this section affects your legal rights.
Loss and Cancellation:
Title and risk of loss for all Merchandise ordered by you will pass to you on our delivery to the shipping carrier. We reserve the right to cancel any order for any Merchandise for any reason.
Waiver:
Your purchase of an item using the Kitkoo Service constitutes a waiver of any and all intellectual property, proprietary, personal, and privacy claims relating to that purchase.
Price: The price of Merchandise is as quoted on the Kitkoo Service from time to time. Kitkoo reserves the right to determine pricing for the Creator Tools (the “CT Fee”). Kitkoo will make reasonable efforts to keep CT Fee information published in the Creator dashboard, please see the Creator Tools page in your dashboard for more details. Kitkoo may change the CT Fees for Creator Tools by providing advance notice of change before such charges apply. All CT Fees are in U.S. Dollars and are non-refundable unless otherwise specified herein.
Auto-renew Subscription: The “Subscription Billing Date” is the date when you purchase your first subscription to a Subscription Services. The Subscription Services begin on the Subscription Billing Date and continue for the applicable subscription period (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel, or we terminate your access to the Subscription Services. By subscribing to a Subscription Services, you authorize Kitkoo or its Payment Processor (defined below) to periodically charge the Subscription Fee on a going-forward basis for each Subscription Period before the payment due date– until cancellation or termination of your access to the Subscription Services. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of the Subscription Services for all applicable fees and taxes for the next Subscription Period.
Auto-renew Authorization: You authorize Kitkoo to charge all Subscription Fees for the Subscription Services to which you subscribe, including all applicable taxes, to the payment method you specify. Kitkoo or Payment Processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide. All Subscription Fees for Subscription Services will be processed as set forth below.
Payment Processing: We may use a third-party payment processor (“Payment Processor”) to process your payments for Merchandise or Creator Tools. The processing of payments will be subject to the terms, conditions, and privacy policies of the Payment Processor in addition to these Terms of Service. We are not responsible for error by the Payment Processor. By clicking the “Buy now” or “Subscribe” button on the checkout page, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any Merchandise or Creator Tools ordered in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to charge your chosen payment provider (“Payment Method”). You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.
Payment Method: The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor or otherwise, do not receive payment from you, you agree to pay all amounts due upon demand. Fees will be charged in the local currency of your shipping address. You are responsible for paying all fees and applicable taxes associated with the Merchandise or Creator Tools ordered in a timely manner with a valid payment method. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. If your Payment Method is not authorized or accepted, Kitkoo reserves the right to cancel your order with no further liability or obligation to you. Kitkoo reserves the right to stop accepting credit cards from one or more issuers at any time.
Cancelation of Subscription Services: You may cancel the Subscription Services at any time by navigating
to the “My Purchases” section of your user dashboard, clicking the “Manage” button associated with the Creator Tool, and selecting “Cancel” or by contacting us at support@kitkoo.com. You must cancel your Subscription Services before it renews in order to avoid billing of the next periodic Subscription Fee to your account. YOUR CANCELLATION MUST BE RECEIVED BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGES FOR THE NEXT SUBSCRIPTION PERIOD.
Delinquent Accounts: Kitkoo may suspend or terminate access to the Kitkoo Services, for any account for which any amount is due but unpaid. In addition to the amount due for the Kitkoo Services, a delinquent account may be charged fees or charges that are incidental to any chargeback or collection of any the unpaid amounts, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then Kitkoo reserves the right to immediately terminate your access to the Subscription Services.
Service Content, Software and Trademarks: You are only authorized to use the Kitkoo Service for the purpose of engaging in business transactions with Kitkoo. You may not use any automated technology to scrape, mine or gather any information from the Kitkoo Service or otherwise access the pages of the Kitkoo Service for any unauthorized purpose. If you are blocked by Kitkoo from accessing the Kitkoo Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). The technology and software underlying the Kitkoo Service or distributed in connection therewith are the property of Kitkoo, our affiliates and our partners (the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. The Kitkoo Service may contain images, artwork, fonts and other content or features (“Service Content”) that are protected by intellectual property rights and laws. Except as expressly authorized by Kitkoo, you agree not to modify, copy, frame, rent, lease, loan, sell, distribute or create derivative works based on the Kitkoo Service or the Service Content, in whole or in part. Any use of the Kitkoo Service or the Service Content other than as specifically authorized herein is strictly prohibited. Any rights not expressly granted herein are reserved by Kitkoo. The Kitkoo name and logos are trademarks and service marks of Kitkoo Holdings, LLC (collectively the “Kitkoo Trademarks”). Other company, product and service names and logos used and displayed via the Kitkoo Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Kitkoo. Nothing in these Terms of Service or the Kitkoo Service should be construed as granting any license or right to use any of Kitkoo Trademarks displayed on the Kitkoo Service, without our prior written permission in each instance. All goodwill generated from the use of Kitkoo Trademarks will inure to Kitkoo’s exclusive benefit.
Third Party Material: Under no circumstances will Kitkoo be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content or materials. To the maximum extent permitted under applicable law, the third party providers of such content and materials are express and intended third-party beneficiaries of these Terms of Service with respect to their content and materials.
Kitkoo does not guarantee the accuracy, completeness, or usefulness of any third-party content or materials, nor does it endorse any opinions or recommendations expressed in such content or materials. You acknowledge that reliance on any such third-party content or materials is solely at your own risk.
Kitkoo may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws, or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Kitkoo, its users, or the public.
The Kitkoo Service may provide links or other access to third-party websites or resources on the Internet. Kitkoo Holdings has no control over such websites or resources and is not responsible for and does not endorse such websites or resources. Kitkoo Holdings shall not be liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, events, goods, or services available on or through any such website or resource. Any transactions or dealings you have with third parties found while using the Kitkoo Service are solely between you and the third party. You agree that Kitkoo Holdings is not liable for any loss or claim that you may have against any such third party.
YOUR USE OF THE KITKOO SERVICE IS AT YOUR SOLE RISK. THE KITKOO SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. KITKOO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO ANY LISTING, MERCHANDISE, OR SERVICE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
KITKOO MAKES NO WARRANTY THAT THE KITKOO SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE KITKOO SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. KITKOO DOES NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE KITKOO SERVICE WILL BE ACCURATE OR RELIABLE. YOU UNDERSTAND AND AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE KITKOO SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KITKOO OR THROUGH OR FROM THE KITKOO SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
KITKOO WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF KITKOO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY MERCHANDISE, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (IV) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL KITKOO’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID KITKOO OR KITKOO HAS PAID YOU IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
Kitkoo, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Kitkoo Service and remove and discard any content within the Kitkoo Service, for any reason. Further, you agree that Kitkoo will not be liable to you or any third party for any termination of your access to the Kitkoo Service.
Each party is an independent contractor in the performance of each and every part of these Terms of Service. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of its activities, or those of its employees or agents, in the performance of its activities under these Terms of Service. You do not have the authority to commit Kitkoo in any way and will not attempt to do so or imply that you have the right to do so.
These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes, you and Kitkoo agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California.
These Terms of Service constitute the entire agreement between you and Kitkoo and govern your use of the Kitkoo Service, superseding any prior agreements between you and Kitkoo with respect to the Kitkoo Service. The failure of Kitkoo to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Kitkoo
Under California Civil Code Section 1789.3, users of the Kitkoo Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Kitkoo Holdings, located at 347 3rd Ave, New York, NY 10010, USA.
Our liability: Nothing in these Terms of Service shall limit or exclude our liability to you:
for death or personal injury caused by our negligence;
for fraudulent misrepresentation; or
for any other liability that, under consumer protection or other law, may not be limited or excluded.
Subject to this, if you are a consumer and not a business customer, in no event shall we be liable to you for any business losses, and if you are a business customer, in no event shall we be liable to you for any indirect or consequential losses, or for any loss of profit, revenue, contracts, data, goodwill, or other similar losses, and any liability we do have for losses you suffer arising out of or in relation to these Terms of Service or the Kitkoo Service shall not exceed the amount you have paid Kitkoo or Kitkoo has paid you in the last six (6) months, or, if greater, one hundred Euros (€100) and is strictly limited to losses that were reasonably foreseeable.
We will not be liable or responsible for any failure to perform or delay in performance of any of our obligations under these Terms of Service that is caused by events outside our reasonable control.
Buyers: Purchasing of Merchandise: Prices include VAT but exclude delivery costs, which will be automatically added (at the cost shown) to the total amount due as set out when you view the items in your shopping basket, once you have selected your chosen different delivery method. Our VAT registration number is GB186156289.
Faulty Merchandise: If you are a consumer, once we accept your order for Merchandise, we are under a legal duty to supply products (including digital products) that are in conformity with these Terms of Service.
If any Merchandise you order is damaged or faulty when delivered to you or has developed a fault, you may have one or more legal remedies available to you, depending on when you make us aware of the problem, in accordance with your legal rights. If you believe any Merchandise was delivered damaged or faulty or has developed a fault, you should inform us as soon as possible, preferably in writing, giving your name, address, and order reference.
Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts of New York, New York: (i) any dispute or controversy related to intellectual property; (ii) any claim related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (iii) any claim for injunctive relief. You may opt out of this arbitration agreement. If you do so, neither you nor Kitkoo can require the other to participate in an arbitration proceeding. To opt out, you must notify Kitkoo in writing within 30 days of the date that you first became subject to this arbitration provision. The opt-out notice must be mailed to Kitkoo Holdings, 347 3rd Ave, New York, NY 10010, and include your name, address, and username or email address you use for Kitkoo, and an unequivocal statement that you want to opt out of this arbitration agreement. If you opt out of this arbitration agreement, the other parts of these Terms of Service will continue to apply to you.
Arbitration Agreement and Class Action Waiver
Any dispute arising out of or related to these Terms of Service or the Kitkoo Service (collectively, “Disputes”) shall be resolved by binding arbitration, rather than in court, except as provided in Section T below.
The Federal Arbitration Act and federal arbitration law apply to these Terms of Service. Arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse Kitkoo for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. Notwithstanding the foregoing, nothing in this Section shall supersede or invalidate any other agreement to arbitrate that you have entered into with Kitkoo.