This Agreement contains the complete terms and conditions that govern the use of the Kin Custom website, including any subdomains thereof, any other websites through which Kin Custom makes its Services available, as well as the content and Services offered by Kin Custom (the “Kin Custom Platform”).
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE ANY PART OF THE KIN CUSTOM PLATFORM. KIN CUSTOM RESERVES THE RIGHT, WITH OR WITHOUT NOTICE, TO MAKE CHANGES TO THIS AGREEMENT AT KIN CUSTOM’S SOLE DISCRETION. CONTINUED USE OF ANY PART OF THE KIN CUSTOM PLATFORM CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES.
Last Updated: July 10, 2018
You are hereby put on notice that you are obligated to periodically review this document to make yourself aware of any changes hereto and any continued use of the Kin Custom Platform or any part thereof shall constitute your full acceptance of such changes.
1. SCOPE OF KIN CUSTOM SERVICES
The Kin Custom Platform is an online marketplace that enables you, upon proper registration of a User account, to create, design and customize (“Kin Custom Services” or “Services”) purchase and sell items made available on the Kin Custom Platform (“Product” or “Products”), in a manner consistent with this Agreement. The scope of Services provided by Kin Custom are limited to those enumerated in this Section 1.
2. ACCESS TO AND USE OF THE KIN CUSTOM PLATFORM
To access the Kin Custom Platform, you must be at least eighteen (18) years of age, you may use the Kin Custom Platform only with the approval of your parent or guardian.
You do not have to create a user account if you wish to explore the Kin Custom Platform. However, you will be unable to use the Services for any Products made available on the Kin Custom Platform, as such capabilities are restricted without the creation and usage of a user account.
You will be asked to provide certain registration details or other information prior to your use of the Kin Custom Platform. It is a condition of your use of the Kin Custom Platform that all the information you provide will be correct, current, accurate and complete. If Kin Custom believes the information you provide is not correct, current, accurate or complete, Kin Custom has the right to deny, terminate and/or suspend your access to the Kin Custom Platform, or to any of its resources, at any time without notice to you. Any termination or suspension shall also result in the termination of any and all Products you have created and placed for order with Kin Custom. Unless required by law, Kin Custom is not obligated to save any of your designs or customizations on the Kin Custom Platform upon the suspension or termination of your account. Kin Custom assumes no responsibility for your inability to create, design, customize, purchase or have shipped your Product in the event your account is suspended or terminated. In the event you have purchased your Product on or before the suspension or termination of your account, Kin Custom will issue you a refund for your total purchase.
You are responsible for any and all activities that occur under your account. You are solely responsible for maintaining the confidentiality and security of your account and any information provided in order to create or maintain it (i.e. username, passwords and/or passcodes). You must immediately notify Kin Custom if your password or account has been lost, stolen, misappropriated, compromised or subject to unauthorized use. From time to time, Kin Custom may require that you change your password.
You are prohibited from using the Kin Custom Platform to compromise security or tamper with system resources and/or accounts. The use or distribution of tools designed for compromising security (e.g., password crackers, rootkits, Trojan horses, or network probing tools) is strictly prohibited. If you become involved in any violation of system security, Kin Custom reserves the right to release your account details to the system administrators of other websites and/or the authorities in order to assist them in resolving security incidents. Kin Custom reserves the right to investigate suspected violations of this Agreement. Kin Custom reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Kin Custom to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate this Agreement.
3. PRODUCT CREATION
The Kin Custom Platform enables users to customize designs on a variety of Products, which the user may later purchase. Any design, creation or customization made by a user shall be the intellectual property of the user to which the user grants a limited license to as set forth in Section 13.1 of these terms. Kin Custom reserves the right, in its sole and independent discretion, to deny any design on any item made by you or made through your user account, for any reason.
By using the Services for a Product, you represent and warrant:
- • That you are the owner or licensee of all trademark rights, copyrights, rights of publicity and other intellectual property, which are necessary for the lawful creation of such design or customization of the Product. Such rights include the rights to any name, slogan, design, phrase, description, images, or other text to be used or incorporated into your design or customization.
- • That your creation, design or customization does not contain material or content that discriminates against, defames, vilifies harasses, or intends to discriminate, defame, vilify or harass anyone on the basis of their race, national origin, religion, gender, physical or mental disability, medical condition, marital status, sexual orientation or age, or otherwise engage in abusive or disruptive behavior.
- • That your creation, design or customization does not contain material or content that is harmful, indecent, invasive of privacy or publicity rights, abusive or pornographic in nature.
- • That your creation, design or customization does not contain material or content that is misleading, deceptive, fraudulent, or intends to be misleading, deceptive or fraudulent.
Kin Custom has the right to review, in its sole discretion, any and all creations, designs or customizations made by any and all Users. Further, Kin Custom may, in its sole discretion, remove or reject any designs, customizations or creations by any and all Users, cancel or terminate any orders or accounts, and report any and all Users to proper authorities who Kin Custom believes, in its sole discretion, to be in violation of this Agreement or applicable laws, or otherwise.
4. ORDERING AND SHIPMENT OF A PRODUCT
By creating, designing or customizing a Product you are not obligated to order. Products you wish to revisit later to order may be saved in your User account or shopping cart. However, any creations, customizations or designs not ordered and instead saved in your User account or shopping cart may be removed and/or deleted by Kin Custom at any time, at its sole discretion. Kin Custom bears no responsibility for any damages or losses attributed to the cancelation or removal of a creation, design or customization of a Product that you have not ordered.
By placing an order through the Kin Custom Platform, it will be considered that you have made a binding offer for the creation and purchase of the particular product. In order to make such a purchase you will be required to submit payment information, which may include, without limitation: credit card information, debit card information, shipping address, billing address, full name and any other information Kin Custom believes to be necessary to ensure all information necessary to ensure complete, accepted and processed payment for and shipment of the Product are proper.
Upon order of a Product and a complete transaction, you will be sent a confirmation email. This confirmation email is not an acceptance of your offer, but instead acknowledges Kin Custom’s receipt of your order.
Kin Custom cannot guarantee the availability of a particular product you have ordered, despite your ability to submit an order. In the event an order has been submitted and paid for that is not available at the time of order, your Product will be placed on back-order until such time your order can be fulfilled. All sales to you by Kin Custom are final as set forth in Section 5 and 6 of this Agreement.
Once your order is processed through the Kin Custom Platform and accepted by Kin Custom for creation, you will receive an additional email informing you of the timeline in which your ordered Product will be ready for shipment (“Order Approval”). Depending on the complexity of your design and the amount of orders being processed, Kin Custom may delay the creation and shipment of your ordered Product, in which case Kin Custom will notify you of such delays and expected completion and shipment dates, respectively. Kin Custom may include API tracking capabilities dependent on the type of shipment method you select. Kin Custom is not responsible for any miscalculations associated with any shipment method’s shipment timeline, whether provided to you through the use of such API tracking capabilities on the Kin Custom Platform or any other means (including, but not limited to emails sent to you by Kin Custom regarding your shipment timeline).
Kin Custom cannot guarantee the adherence to any timeline and any timeline provided in any Order Approval is an estimation of the time it will take to complete and ship your ordered Product. Kin Custom bears no responsibility for any damages or losses suffered as a result of the arrival or delay of arrival of your ordered Product.
Kin Custom reserves the right, in its sole discretion, to reject any order for any reason at any time without advance notice to you.
You may be provided with various options to ship your ordered Product. Kin Custom bears no responsibility for any and all shipping carrier’s inability to ship your ordered Product. Further, Kin Custom may, in its sole discretion, select a different shipping carrier on your behalf should the shipping carrier you selected by unable to ship your ordered Product within the specified terms you requested such shipment to occur. You will bear the cost of any shipping costs and fees associated with your selected method of shipment or shipping carrier.
Title to any Product on the Kin Custom Platform shall remain with Kin Custom until payment for such Product has been received and the Product has been placed with the shipping carrier. Thereafter, title and risk of loss for all Products ordered by you will pass to you, upon receipt of full payment and your ordered Product to the shipping carrier.
If your customer's shipping address is incorrect please contact us immediately at firstname.lastname@example.org with the following information:
- • Order number
- • Email address order was placed with
- • Correct shipping address
If the order has already been shipped it is your responsibility to contact the carrier. If they are unable to deliver the package it will be returned to our facility. Once the package arrives we will contact you to confirm the correct address and shipping charges.
We are not responsible for lost or stolen packages. The carrier will generally determine if your order can be left in a safe secure place at your delivery address. If you believe your package may have been lost or stolen, please contact the carrier directly.
Kin Custom reserves the right to administer a minimum order quantity (MOQ) on any Product made available through the Kin Custom Platform.
5. DAMAGED OR DEFECTIVE PRODUCT
In the event your Product is damaged or defective, you are required to contact Kin Custom by submitting a Return Request through Creator Studio. You must contact Kin Custom within fourteen (14) days of receipt of the damaged or defective product and you must provide reasonable proof to us of such damage or defect. Kin Custom will promptly review your correspondence in order to determine whether such damage or defect warrants a new Product sent to you at no additional cost. Kin Custom will inform you of its decision to approve or deny your request for a new Product along with an explanation of its decision. The decision shall be final and binding without recourse.
Kin Custom will not honor defect requests which are attributed to your customers sizing concerns or your design flaws, which may include: spelling, grammatical, font, design, or appearance errors, if such errors are attributed to your submitted creation, design or customization.
In the event Kin Custom reviews and determines that your damage or defect claim warrants a new Product, Kin Custom will use reasonable efforts to have your new Product delivered to you within a reasonable amount of time. Kin Custom does not and cannot guarantee any definitive timeline nor the accuracy of any projected timeline provided to you by any personnel working for or on behalf of Kin Custom. Any projected timeline is suggestive in nature and shall not be construed as a binding time frame for which your new Product is to be delivered. Kin Custom will, however, reasonably communicate with you to provide you with updates as to the status of your Product’s shipment and delivery.
6. MODIFICATION & CANCELLATION REQUESTS; ALL PURCHASES FINAL
Due to the customized nature of the Products you have ordered, no modifications or cancellations are accepted after an order has been submitted. Your order shall be non-refundable and final, and no modification requests will be honored or permitted. The price of each Product ordered considers the type of design and customization you have incorporated into the product, thus no modifications are permitted as any modifications would result in a discrepancy between the purchase price and the actual cost of the Product.
You acknowledge and agree that ordered Products produced by us for you are custom goods. In any scenario other than where a Product is defective or damaged pursuant to Section 5 of this Agreement, you have no right to cancel any order or return any Products and all orders, once accepted by Kin Custom, are final.
7. STANDARDS OF CONDUCT
As you enjoy use of the Kin Custom Platform, you must remember that it is your sole responsibility to comply with any and all applicable laws, rules, regulations and obligations. Kin Custom takes no responsibility for your lack of adherence to such laws, rules, regulations and obligations and shall not be responsible for any consequences you may suffer as a result of such lack of adherence. You are permitted to use the Kin Custom Platform strictly in accordance with the terms, rules and regulations set forth in this Agreement and elsewhere throughout the Kin Custom Platform. Kin Custom may revoke or limit your access to the Kin Custom Platform, suspend or terminate your user account in accordance with the termination language set forth in Section 15.
You are required to adhere to the following standards of conduct while using the Kin Custom Platform at all times you are using or accessing it. Accordingly, you will not and will not assist or enable others to:
- • To provide untrue, inaccurate, incomplete and not current information about you.
- • Use the Kin Custom Platform in a manner that indicates, either directly or indirectly, any partnership between you and Kin Custom, endorsement of you, affiliation or opinion of you, your User account, your creations, designs or customizations.
- • Use the Kin Custom Platform in any manner inconsistent with the terms of this Agreement.
- • Submit a creation, design or customization that violates another party’s intellectual property rights, including but not limited to trademark rights, copyrights, rights to privacy or publicity.
- • Discriminate against or harass anyone on the basis of their race, national origin, religion, gender, physical or mental disability, medical condition, marital status, sexual orientation or age, or otherwise engage in abusive or disruptive behavior.
- • Modify, copy, create or enable creation of derivative works, modifications, or adaptations of the Kin Custom Platform or any components thereof;
- • Use any robots, spider, crawler, scraper or other automatic device or program or manual process to monitor, copy, reproduce, access or collect data through the Kin Custom Platform.
- • Attempt to decompile, disassemble or reverse engineer any software, or any parts of the software used in the implementation and operation of the Kin Custom Platform.
- • Use any part of the Kin Custom Platform to violate any applicable laws or use the Kin Custom Platform in a manner that may subject Kin Custom, its staff or other users to the threat of civil or criminal penalties.
- • Transmit or upload any files, software or programs that (i) contain or you have reason to believe may contain viruses; (ii) may be corrupted or that you have reason to believe are corrupted; (iii) contain malicious code or that you have reason to believe contain malicious code; or (iv) that you have reason to believe may harm another person’s computer, disrupt the Kin Custom Platform, expose the Kin Custom Platform and/or its users to a cyber breach, or provide you or other parties gain unauthorized access to the Kin Custom Platform, other user accounts, or any other information provided on either or both.
- • Provide access to the Kin Custom Platform to persons who are prohibited pursuant to applicable laws or this Agreement.
- • Violate or infringe upon anyone else’s rights or otherwise cause harm (whether physical, mental or emotional) to anyone.
- • Use the Kin Custom Platform to promote, post, communicate, share, transmit or use as part of a Product, defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material or communication.
- • Use the Kin Custom Platform in any manner that could in any way disable, overburden, damage, or impair the Kin Custom Platform or any components thereof, or otherwise interfere with any other party's use and enjoyment of the Kin Custom Platform. You further agree that you will not obtain, or attempt to obtain, any materials, content, or information by any means not expressly made available or provided for through the authorized use of the Kin Custom Platform.
WHILE KIN CUSTOM EXPLICITLY PROHIBITS THE ABOVE CONDUCT, YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BE EXPOSED TO SUCH CONDUCT AND CONTENT, AND THAT YOUR USE OF THE KIN CUSTOM PLATFORM IS ENTIRELY AT YOUR OWN RISK, AND THAT KIN CUSTOM SHALL HAVE NO LIABILITY OF ANY KIND FOR SUCH CONDUCT.
YOU UNDERSTAND AND AGREE THAT IF YOUR USE OF THE KIN CUSTOM PLATFORM OR ANY COMPONENTS THEREOF VIOLATES ANY PROVISIONS IN THIS AGREEMENT, KIN CUSTOM CAN SUSPEND AND/OR TERMINATE YOUR USE OF THE KIN CUSTOM PLATFORM IMMEDIATELY WITHOUT PRIOR NOTICE AND WITHOUT ANY RIGHT OF REFUND, SET-OFF, OR HEARING. FURTHER, KIN CUSTOM MAY ALSO SEEK ADDITIONAL REMEDIES AS SUCH REMEDIES ARE PERMITTED BY THIS AGREEMENT AND APPLICABLE LAW.
8. THIRD PARTY WEBSITES
Kin Custom may make available certain integrations with third-party websites (for example: Shopify, Facebook, Instagram, Amazon). These integrations will permit you to upload your customizations, designs and creations to your accounts on these platforms for publicity and sale. Any use of these third-party website by and through this capability shall not involve Kin Custom and Kin Custom shall not have any responsibility or liability for your conduct, content, products, services or other offerings made available by you through these third-party websites. Further, you may be subject to additional terms and conditions as a result of your use of such third-party websites. Such terms and conditions are between you and such third-party websites and shall not include Kin Custom.
In the event you wish to use third-party websites for the publicity or sale of your Products, you will be entering into a separate agreement with any customers or users of those third-party websites. Any issues, liabilities, losses or damages assessed or attributed to your use of such third-party websites in this manner shall bear no responsibility or liability on Kin Custom. Accordingly, you will be solely responsible for any agreements you enter into with any customers on such third-party websites. Further, in the event Kin Custom is wrongfully named in a complaint, allegation, claim or cause of action relating to your relationship with a customer through your use of a third-party website in this manner, you agree to indemnify Kin Custom in accordance with the Indemnification provisions of this Agreement.
The Kin Custom Platform provides two marketplaces for users, (1) a marketplace for users to design, upload and sell Products they have ordered and purchased from Kin Custom (“User Marketplace”); and (2) a marketplace for Kin Custom and its Creators to sell its own Products and designs thereof (“Kin Custom Marketplace”).
An Owner of a User Marketplace (also referred to interchangeably as “Owner”) is defined as any user who actively or previously maintained an account to create, design or customize Products for sale through their User Marketplace.
Owners of a User Marketplace are solely responsible, with no liability attributed to Kin Custom, for the creations, designs and customizations of Products placed on their User Marketplace; Any and all advertising and the content included therein, of their User Marketplace or any contents within their User Marketplace; Any communication or interaction with a customer of your User Marketplace; and Any disputes between the owner of the User Marketplace and a customer.
Any relationship between an Owner of a User Marketplace and a customer thereof shall strictly be a relationship between such Owner and customer, with no relationship between Kin Custom and customer. Any disputes between the Owner of a User Marketplace shall be between such Owner and customer, without any involvement of Kin Custom. Further, an Owner agrees to indemnify Kin Custom and hold it harmless against any dispute, claim or cause of action pursuant to the indemnification provisions set out in Section 21.
You agree that Kin Custom makes no representation that it is capable or will be capable at any time to procure your Products for order by customers.
As an Owner of a User Marketplace you are permitted to allow Kin Custom to sell your Products at the price of your discretion, but any price shall not exceed 1000% of your per Product purchase total. To opt out, simply delete your design.
10. PAYMENT TERMS
You are permitted to choose how you will pay for your ordered Product by selecting any of the payment methods authorized by Kin Custom. Any and all payment methods available to you by Kin Custom will be provided to you when you are submitting payment for your ordered Product. Notwithstanding the foregoing, Kin Custom reserves the right to limit the payment methods available to you based off of various criteria, including: order value, order quantity, shipment destination, or any other criteria.
By submitting a payment method to use, you hereby authorize Kin Custom to use such payment method and charge such payment method for any purchase you make on the Kin Custom Platform.
Should you use a payment method or provide Kin Custom with payment information that results in the inability of Kin Custom to collect any payment owed (i.e. your payment method has insufficient funds or the payment information is incomplete and a transaction cannot be conducted) through no fault of Kin Custom’s own, you agree that additional charges may apply and be assessed to you in order to recoup the costs associated with Kin Custom’s attempt and failure to collect payment. Kin Custom is not responsible for the incompleteness or inaccuracies of any payment method as such information is solely your responsibility. Accordingly, Kin Custom is not responsible for any losses suffered as a result of inaccurate and incorrect information pertaining to your payment methods.
Kin Custom may use any money earned and not disbursed to your payout method, which is attributed to earnings through your User Marketplace sales to collect any payment owed by you to Kin Custom. Any collection by and through this method shall not constitute an accord and satisfaction of the full amount owed by you to Kin Custom, unless the amount owed by you is collected in full.
If you fail to pay or Kin Custom is otherwise unable to collect payment from you, Kin Custom may assign the rights to collect such payments to a debt collection agency and transfer any and all personal information necessary for such debt collection agency to collect the payment owed.
Kin Custom may use third-party payment service providers which may carry additional fees when processing payments. Kin Custom is not responsible for any additional fees assessed as a result of using such third-party payment service providers and disclaims all liability with respect to such fees. Further, such third-party service providers may also impose separate and distinct terms and conditions on you. It is solely your responsibility to review these terms and conditions prior to submitting payment through such third-part payment service provider.
11. PAYOUT TERMS
For payment processing purposes, Creators must have a minimum of $50.00 or more in monthly sales to receive a monthly profit. If you do not meet the minimum requirement, no worries, you can roll over until you meet this threshold on the next pay cycle. Please make sure your bank information is up to date in order to be paid on the 15th of every month. Each pay cycle includes the previous month's sales.
Payment to you for the sale of a Product from your User Marketplace shall be contingent on a valid payout method. Payment to you via your payout method may not be immediately available due to the type of payout method you have selected. Kin Custom may also delay your payout without advance notice to you for purposes of (1) preventing fraud or other unlawful acts; (2) to conduct a full risk assessment as it pertains to the Products purchased, the payment and payout methods and the User account associated with the purchase; (3) ensure that sufficient inventory is available through your User Marketplace for fulfillment and procurement of an order; (4) conduct an investigation that relates in whole or in part to the purchase or user accounts with which the purchase is associated; (5) to mitigate fraud or other unlawful acts; and (6) for other security purposes as determined from time to time by Kin Custom
It is solely your responsibility to ensure Kin Custom has current, full and accurate information regarding your payout method. Kin Custom will not be liable for any loss suffered by you should you provide information that is incorrect, incomplete, inaccurate or otherwise insufficient for Kin Custom to make payments to your payout method. Any money earned by you that has not been paid out for reasons set out in this Section 11.2 or due to termination as set out in Section 15, shall be held by Kin Custom for a period of 60 days and thereafter shall be donated on your behalf to a charity of our choice.
In the event your user account is terminated, either by us or by you, and there is money earned left in your user account, we will promptly disburse such money to your payout method. Section 11.2 shall apply if any information pertaining to your payout method is incorrect, incomplete, inaccurate or otherwise insufficient.
You are responsible for any and all tax liabilities incurred by you through your use of your user account (i.e. sales of your Products). Kin Custom will not collect or pay taxes on your behalf nor does it have a responsibility or obligation to do so. Any and all amounts distributed to you shall be inclusive of any and all taxes associated with such amount. It is thus your responsibility to report and remit such taxes or any penalties associated therewith as a result of your failure to report and/or remit such taxes to the proper tax authority.
13. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
Kin Custom holds no right in or to the ability to sell a user’s creations, designs, customizations or products.
By creating, designing and customizing Products on the Kin Custom Platform, you grant Kin Custom a non-exclusive, worldwide, royalty-free, sublicense-able, transferrable license to use, reproduce, distribute, prepare derivative works of and display such creations, designs or customizations in connection with and in order to fulfill Kin Custom’s Services. This license does not provide Kin Custom with any ownership of any particular creation, design or customization.
This license shall apply solely to Kin Custom’s ability to implement a user’s creations, designs and customizations to any and all marketing and promoting of all or any portion of the Kin Custom Platform in and across any and all mediums and formats. This license shall remain with Kin Custom until such time your user account is terminated, either by you or Kin Custom and shall be perpetual and ongoing until such termination occurs.
You agree that you will not remove, deface, or destroy any copyright, patent notice, trademark, service mark, or other proprietary marks, or confidential legends placed on or within the Kin Custom Platform, any documentation of the Kin Custom Platform, and any copies thereof in any form. All rights not licensed hereunder are expressly reserved by Kin Custom.
14. COPYRIGHT INFRINGEMENT; DMCA NOTICE
If you believe that your work has been copied in a way that constitutes copyright infringement, please notify us by following the format set out in our DMCA Notice Policy. Be sure that what you believe to be infringed upon is, in fact, your copyright by reviewing our IP Tutorial.
This Agreement shall terminate between you and Kin Custom upon the deletion of your user account, except for such provisions which are intended and expressly stated to survive termination.
Kin Custom reserves the right, but has no obligation, to monitor use of the Kin Custom Platform to determine compliance with this Agreement, as well as the right to edit, refuse to post, or remove any content, designs or Products, in whole or in part, at its sole discretion, whether listed under your user account or listed by Kin Custom.
Kin Custom takes compliance with these terms very seriously. Accordingly, any violation of these terms no matter how minor or major the violation may be, shall provide Kin Custom with the sole authority to terminate your account and access to the Kin Custom Platform. Kin Custom also reserves the right to terminate your access to any or all of the Kin Custom Platform at any time without notice.
Before terminating your user account Kin Custom encourages you to remove any and all content you have published or are in the process of creating on or through the Kin Custom Platform, including any and all creations, designs and customizations.
In the event your user account is terminated by any means set out in Section 15, and there are contents remaining in your User Marketplace or on the Kin Custom Platform, Kin Custom will provide you with seven (7) days from the date of termination to remove such items.
In the event any creations, designs or customizations remain in a user’s portfolio or the Kin Custom Platform upon the 7th day, it will be treated as if you have abandoned such items and accordingly provides Kin Custom with the right to sell such items and keep any and all revenues and profits generated as a result of such sales, with no right, title or interest in the revenues and profits vested in the user.
Further, upon the 7th day after termination of your account, it shall be deemed that you have abandoned your account and User Marketplace together with any and all contents remaining therein, and will have automatically provided Kin Custom with exclusive ownership rights to all intellectual property related thereto.
16. DISPUTE RESOLUTION; ARBITRATION AGREEMENT; WAIVER OF JURY TRIAL
If you opt to bring any claim, dispute or controversy against Kin Custom arising out of or in relation to this Agreement or the breach, termination, enforcement or interpretation thereof, or your access to and use of the Kin Custom Platform or any components thereof, you agree that such claim or claims shall be settled by binding arbitration under the rules of the American Arbitration Association.
Arbitration shall occur within Franklin County in the state of Ohio, or any other location to which you and Kin Custom mutually agree in writing.
The prevailing party of arbitration between you and Kin Custom shall be entitled to reasonable attorneys’ fees and expenses from the non-prevailing party to the extent such fees and expenses are permitted under applicable law and the American Arbitration Association Rules.
The arbitrator’s decision shall be final and binding, including all conclusions which render an award to either party. Judgment rendered by the arbitrator may be entered in any court of competent jurisdiction.
YOU AND KIN CUSTOM HEREBY ACKNOWLEDGE AND AGREE THAT EACH AND BOTH, COLLECTIVELY AND INDEPENDENTLY, IS IRREVOCABLY AND UNCONDITIONALLY WAIVING ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, ACCESS TO AND USE OF THE KIN CUSTOM PLATFORM OR ANY COMPONENTS THEREOF.
YOU AND KIN CUSTOM HEREBY ACKNOWLEDGE AND AGREE THAT EACH AND BOTH, COLLECTIVELY AND INDEPENDENTLY, IS IRREVOCABLY AND UNCONDITIONALLY WAIVING ANY RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION OR ANY OTHER REPRESENTATIVE PROCEEDING AS TO ALL CLAIMS, DISPUTES OR CONTROVERSIES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, OR YOUR USE OF AND ACCESS TO THE KIN CUSTOM PLATFORM OR ANY COMPONENTS THEREOF.
You specifically consent to personal and exclusive jurisdiction by and venue in the State and Federal courts of Franklin County, Ohio in connection with any dispute between you and Kin Custom arising out of or involving this Agreement, any provisions herein, and/or your use of and access to the Kin Custom Platform.
17. JURISDICTION AND VENUE
This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of Ohio, without giving effect to any conflicts of laws principles that require the application of law of a different state. Any disputes under this Agreement may be brought in the state courts and Federal courts located in Franklin County, Ohio. You hereby consent to the personal jurisdiction and exclusive venue of these courts.
18. DISCLOSURE UNDER LAW
Kin Custom reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process, or governmental request.
19. PERSONALLY IDENTIFIABLE INFORMATION
20. DISCLAIMER & LIMITATIONS ON LIABILITY
You understand that Kin Custom cannot and does not guarantee or warrant that your use of the Kin Custom Platform will be free of viruses, worms, Trojan horses, or other code that may cause damage or harm to your computer(s) or network(s). You acknowledge that you will be solely responsible for implementing sufficient procedures and checkpoints to protect your computer(s) and network(s), and that you will maintain adequate means of backup of your personal data, external to the Kin Custom Platform. Kin Custom further disclaims any responsibility to ensure that any content, from Kin Custom or other users, located on the Kin Custom Platform is necessarily complete and up-to-date.
YOUR USE OF THE KIN CUSTOM PLATFORM OR ANY COMPONENT THEREOF IS AT YOUR OWN RISK. THE PLATFORM IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. KIN CUSTOM DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. KIN CUSTOM DOES NOT WARRANT THAT THE FUNCTIONS OR CONTENT CONTAINED ON ANY COMPONENT OF THE KIN CUSTOM PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE KIN CUSTOM PLATFORM OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
KIN CUSTOM DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, OR THE RESULT OF USE, OF ANY CONTENT IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE. THE USER ACKNOWLEDGES THAT THE CONTENT MAY INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS, AND KIN CUSTOM MAY MAKE CHANGES OR IMPROVEMENTS AT ANY TIME. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY LOSS OR DAMAGE ARISING FROM THE USE OF THE KIN CUSTOM PLATFORM OR ANY COMPONENT THEREOF OR ITS CONTENT. COMPANY MAKES NO WARRANTIES THAT YOUR USE OF THE CONTENT, KIN CUSTOM PLATFORM OR OTHER SERVICES PROVIDED BY KIN CUSTOM WILL NOT INFRINGE THE RIGHTS OF OTHERS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ERRORS OR OMISSIONS IN SUCH CONTENT.
KIN CUSTOM, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, WILL NOT BE LIABLE FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING LOSS OF REVENUE OR INCOME, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR SIMILAR DAMAGES, EVEN IF KIN CUSTOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORSEEABLE.
IN NO EVENT WILL THE COLLECTIVE LIABILITY OF KIN CUSTOM AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), EXCEED THE GREATER OF $100 OR THE AMOUNT YOU HAVE PAID TO KIN CUSTOM APPLICABLE CONTENT, TRANSACTION OR SERVICE OUT OF WHICH LIABILITY AROSE. ALL CLAIMS MADE BY YOU HEREUNDER MUST BE MADE WITHIN ONE YEAR OF THE ACTION TO WHICH SUCH CLAIM RELATES OR FOREVER BE BARRED.
Under no circumstances will Kin Custom 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 Services with respect to their content and materials.
Kin Custom 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 Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Agreement, its users or the public.
You agree to indemnify, defend and hold us, our officers, directors, employees, agents and representatives harmless, as well as, all third parties printing, manufacturing and/or otherwise fulfilling the Products you are creating, designing, customizing, purchasing or selling via the Kin Custom Platform, their officers, directors, employees, agents and representatives (collectively “Indemnified Parties”) harmless, from and against any and all claims, damages, losses, liabilities, costs (including reasonable legal fees) or other expenses that arise directly or indirectly out of or from (1) your breach of this Agreement or any provision hereof; (2) any allegation that any material, content, design, or Product that you submit to us or transmit to the Kin Custom Platform for any reason whatsoever, infringes or otherwise violates the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (3) any activities conducted by your or your user account while on or in connection with the Kin Custom Platform ( collectively the “Indemnifiable Conduct”)This indemnity will be applicable without regard to the negligence of any party, including any indemnified person. You agree that the Indemnified Parties will have no liability in connection with the Indemnifiable Conduct or any portion thereof. By accepting this Agreement you waive all rights not specifically set forth herein and agree to hold Kin Custom and the Indemnified Parties harmless from any claims resulting from any action taken by Kin Custom or the Indemnified Parties, or both, during or as a result of its investigations and/or from any actions taken as a consequence of investigations by either Kin Custom or law enforcement authorities.
22. PROMOTIONAL CAMPAIGNS & DISCOUNT CODES
Kin Custom may from time to time without advance notice to you initiate and deploy contests, sweepstakes, surveys, games, promotional campaigns and discount codes (“Promotion(s)”). These Promotions are valid only for use on the Kin Custom Platform in a manner consistent with the terms of the Promotion.
Promotions have no cash value and may not be redeemed for cash and thus can have an expiration as unilaterally set by Kin Custom or the user who creates such Promotion.
Promotions may not be redeemed for cash, are void where prohibited by law, shall be redeemable one time per user, cannot be used in conjunction with other Promotions and are subject to expiration dates unilaterally placed by either Kin Custom or the user who has provided such Promotion.
Kin Custom reserves the right, without further notice to you, to modify the terms and conditions pertaining to a Promotion, or to suspend or cancel a Promotion in whole or in part.
23. KIN CUSTOM & CREATOR MARKETPLACE PARTICIPATION IN PROMOTIONS
By creating finished Products in your Creator Studio you expressly and affirmatively agree to participate in any and all Promotions deployed by Kin Custom.
To participate, follow these steps:
- • Create account
- • Design product
- • Under “Sell” prompt, click “Finish”
You may review all eligible products under “Created Merch”, including making revisions on Product retail price.
Any Promotions made available through the Kin Custom Platform may be governed by specific rules that are in addition to this Agreement. 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.
Product promotion codes may be used for a one time use at checkout per transaction. All Creators are encouraged to use the Promotion Code provided by Kin Custom to share with their network or following. To opt out, simply delete your design.
24. MISCELLANEOUS PROVISIONS
If any part of this Agreement is found by a court of competent jurisdiction to be unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Kin Custom as a result of this Agreement or use of the Kin Custom Platform or any components thereof.
The failure of Kin Custom to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. Any waiver of this Agreement by Kin Custom must be in writing and signed by an authorized representative of Kin Custom.
The section titles in the Agreement are for convenience only and have no legal or contractual effect.
Please report any violations of this Agreement to Kin Custom at email@example.com. If you have any questions regarding this Agreement, please contact us at the contact information listed in the previous provision.