Terms of Service
Welcome to getkickshaw.com (Site), the internet site of Kickshaw, Inc. (Kickshaw, We, or Us). The following terms (Terms of Service) govern your use of this Site and the relationship between you and Us. By making a purchase through this Site, you are representing to Us that you are at least 21 years of age.
PLEASE NOTE THAT YOUR USE OF THIS SITE IS SUBJECT TO THE FOLLOWING TERMS OF SERVICE. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS OF SERVICE, DO NOT ACCESS OR OTHERWISE USE THIS SITE OR ANY INFORMATION OR MATERIALS CONTAINED ON IT. YOUR USE OF THE SITE SHALL BE DEEMED TO BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW. THE TERMS OF SERVICE MAY BE UPDATED BY US FROM TIME TO TIME WITH OR WITHOUT NOTICE TO YOU. YOUR CONTINUED USE OF THE GETKICKSHAW.COM SITE INDICATES ACCEPTANCE OF ANY MODIFICATIONS TO THE TERMS OF SERVICE.
1. User Obligations
Kickshaw maintains this Site and its contents for your personal information, entertainment, education, and shopping experience. You agree to (a) provide Us with complete and current registration information when you first register to make a purchase or otherwise create an account with Us and (b) keep such registration information updated and current. Persons under 21years of age are prohibited from providing personal information on our Site. Those who choose to access the Site from locations other than where we ship or do business do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
You are responsible for your use of the Site, and for any use of the Site made using your account. At Kickshaw, our goal is to create a positive, rewarding, and safe experience in connection with our Site. To promote this goal, We prohibit conduct that may be harmful to other users or to Kickshaw. For example, you agree to not do any of the following while using getkickshaw.com:
- Intentionally or unintentionally violate any applicable law or regulation;
- Violating, infringing, or misappropriating other people’s intellectual property, privacy, publicity, or other legal rights;
- Posting or sharing anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
- Sending unsolicited advertising, such as spam;
- Transmitting any viruses;
- Stalking, harassing, or harming other individuals;
- Access, tamper with, or use nonpublic areas of the Site or Kickshaw’s computer systems (Unauthorized individuals attempting to access or tamper with these areas may be subject to prosecution); and
- Frame or link to getkickshaw.com except as permitted in writing by Us.
2. The Sale of Alcoholic Beverages
We do not sell alcohol to persons under the age of 21. By make a purchase using this Site, you swear and affirm that you are over the age of 21. We make every effort to ensure that alcoholic beverages are not delivered to anyone who is under the age of 21. By making a purchase using this Site, you are acknowledging that the person receiving a shipment of alcoholic beverages from Us is over the age of 21. You also agree that any alcoholic beverages purchased from this Site is intended for personal consumption and not for resale. If you do not agree with these conditions, please do not use this Site. If you intentionally or unintentionally misrepresent your age in order to obtain alcoholic beverage or provide alcoholic beverages to a person under the age of 21, We will prosecute you fully to the extent allowable by law.
3. Title and Ownership
Title to, and ownership of, all alcoholic beverages, such as wine, passes from Us to the purchaser at the warehouse where the alcoholic beverage is located at the time of purchase, and the purchaser takes all responsibility for the shipping of alcoholic beverages from the warehouse to his/her home state or wherever the final delivery destination is, should final delivery destination be in a state other than where title to and ownership of the alcoholic beverages passed to the purchaser. This includes taking responsibility for any damage to or destruction of the alcoholic beverages. By arranging for transportation of the alcoholic beverages, Kickshaw is providing a service to, and acting on behalf of the purchaser. We make no representations about the legality of shipping alcoholic beverages. By utilizing this service, the purchaser is representing that he/she is acting in a fashion compliant with his/her local and state laws regarding the purchase, transportation, and delivery of alcoholic beverages.
You further represent that you have obtained any required permission, paid any required fees, are working through properly licensed intermediaries where required, are legally entitled to take possession of the alcoholic beverages, are legally entitled to take quantities ordered, and that you or the person accepting delivery of the alcoholic beverage products are at least 21 years of age. If, between the date of order and date of arrival, the laws of your state change so as to make it illegal for you to receive your shipment, you may return the order for a full refund.
All returns must be made in accordance with the laws of the State of California and returns across state lines are normally not permitted. In the event of a return across a state line, please contact customer service at the following email address: firstname.lastname@example.org.
4. Third Party Content and Monitoring
Any opinions, advice, statements, services, offers, events or other information or content expressed or made available on the Site by third parties (including users or non-user information providers) are those of the respective author(s) or distributor(s) and not of Kickshaw. Kickshaw neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Site by anyone other than authorized Kickshaw employees or representatives acting in their official capacities.
5. Parental Control Protections
As required by the Communications Decency Act of 1996, We hereby notify you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to content that may be harmful to minors. Among the many companies that provide internet blocking and screening software are CyberPatrol, NetNanny, SurfWatch, and GuardOne. We do not sponsor or endorse any of these companies or their services.
The Site may contain links to other websites or resources. You acknowledge and agree that We are not responsible or liable for (1) the availability or accuracy of such websites or resources; or (2) the content, advertising, or products on or available from such websites or resources. The inclusion of any link on the Site does not imply that We endorses the linked site.
7. Gift Certificates and Coupons
KICKSHAW MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO GIFT CERTIFICATES, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT A GIFT CERTIFICATE CODE IS NON-FUNCTIONAL, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH GIFT CERTIFICATE. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
By visiting the Site, you agree that the laws of the State of California, without regard to principles of conflict of laws, will govern these gift certificate and coupons terms and conditions.
Kickshaw reserves the right to change, from time to time, the terms and conditions as they relate to gift certificates, gift cards, and coupons.
All terms and conditions relating to gift certificates, gift cards, and coupons are applicable to the extent permitted by law.
8. Protection of Content Provided by Kickshaw and Its Licensors
Please feel free to browse the Site. All text, graphics, logos, icons, images, audio clips and software on the Site (Site Content) are copyrighted materials owned by or licensed to Us. The Site Content may contain trademarks, service marks and trade names which are owned by Us, and may also contain brand and product names which are trademarks, service marks or trade names owned by certain third parties. Any events described in the Site Content may be subject to other intellectual property rights, the exercise of which rights are expressly reserved by Us or third parties. “Getkickshaw.com” is a trademark of Kickshaw. Unless authorized in writing by an authorized representative of Kickshaw, Kickshaw’s trademarks may not be used in connection with any product or service that is not Kickshaw’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Us. You may not sell, reproduce, distribute, copy, duplicate, resell, modify, display, publicly perform, prepare derivative works based on, frame, mirror, repost, exploit for any commercial purpose, or otherwise use any of the Site Content in any way for any public or commercial purpose without prior written consent of Kickshaw or the third party rights holder. You may not use the Site Content on any other web site or in a networked computer environment for any purpose. If you violate any of these terms, your permission to use the Site Content will automatically terminate, you must immediately destroy any copies you have made of the Site Content, and we may end your authorization to use the Site. Nothing contained on the Site shall be construed as conferring any license or right under any copyright, trade secret, patent, trademark or other intellectual property rights (IP Rights) of Kickshaw or any third party, and, except as provided in these Terms of Service, the exercise of all such IP Rights in the services, products, processes or technologies described in the Site Content are expressly reserved to Us and any third party, as applicable.
9. Copyrights and Notification of Claims of Infringement
We respect the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Us with the following information, in writing:
- A description of the copyrighted work that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Site;
- Your address, telephone number, and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the above information in your written notice to Us is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
We will give you any necessary notices by posting them on the Site. You authorize Us to send notices via electronic mail as well if We decide, in our sole discretion, to do so. You agree to check the Site for notices, and that you will be considered to have received a notice when it is made available to you by posting on the Site.
11. Disclaimer of Warranties
ALTHOUGH KICKSHAW ENDEAVORS TO PROVIDE CURRENT, ACCURATE AND RELIABLE INFORMATION ON THE SITE, WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE EVENTS OR THE ACCURACY, RELIABILITY OR ANY USE OF INFORMATION ON THE SITE. WE DO NOT WARRANT THAT YOUR USE OF THE SITE, OR THE OPERATION OR FUNCTION OF THE SITE, ANY COMPONENT THEREOF, OR ANY PRODUCTS, SOFTWARE OR SERVICES OFFERED IN CONNECTION THEREWITH, WILL BE UNINTERRUPTED OR ERROR FREE; OR THAT DEFECTS THEREWITH WILL BE CORRECTED; OR THAT THE SITE OR ITS SERVER IS FREE OF VIRUSES OR OTHER HARMFUL ELEMENTS.
YOUR USE OF THE SITE IS AT YOUR OWN RISK AND YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIR OF ANY EQUIPMENT YOU USE IN CONNECTION WITH YOUR USE OF THE SITE. KICKSHAW AND ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE SITE. THE SITE CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY EXPRESS, IMPLIED OR STATUTORY WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR FITNESS FOR ANY PARTICULAR PURPOSE.
12. Limitation of Liability
IN NO EVENT SHALL KICKSHAW OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SITE, THE USE OR PERFORMANCE OF THE SITE, THE DELAY OR INABILITY TO USE THE SITE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY EVENTS, INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE OR ANY OF OUR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE. THIS SOLE AND EXCLUSIVE REMEDY IS SEPARATE AND INDEPENDENT OF ANY OTHER PROVISION THAT LIMITS KICKSHAW’S LIABILITY OR YOUR REMEDIES.
14. Termination of your Kickshaw Account
Kickshaw may terminate your account with or without cause at any time effective immediately.
15. Account Maintenance Fee
For any account that has been inactive for twelve consecutive months, We reserves the right to assess a maintenance fee of $1.00 per month. On or at any time after the eleventh month of inactivity, Kickshaw will, via email, notify account owners of their inactivity and the scheduled maintenance fee. An inactive account is any account in which the user has not logged in for twelve consecutive months.
16. No Responsibility to Sell Mispriced Products or Services
We shall have the right to refuse or cancel any orders placed for products and/or services listed at an incorrect price, rebate or refund, or containing any other incorrect information or typographical errors. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, We shall immediately issue a credit to your credit card account in the amount of the charge.
17. Modifications to Prices or Billing Terms
KICKSHAW RESERVES THE RIGHT, AT ANY TIME, TO CHANGE PRICES AND BILLING METHODS FOR PRODUCTS OR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE SITE OR BY E-MAIL DELIVERY TO YOU.
18. Force Majeure
We shall be excused from performance under this Terms of Service if We are prevented, forbidden or delayed from performing, or omit to perform, any act or requirement under this Terms of Service by reason of: (a) any provision of any present or future law or regulation or order of the United States of America, or any state thereof, (b) any act or omission of a third party, or (c) any act of God, emergency condition, war, computer or telecommunications failure or other circumstance beyond our control.
The following provisions shall survive any termination of these Terms of Service: No Warranty from Kickshaw, Limitation of Liability, Indemnity and General Provisions.
20. Governing Law
This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to any conflict of laws principles.
THIS SECTION LIMITS CERTAIN RIGHTS THAT YOU AND WE MIGHT HAVE, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN THE APPLICABLE ARBITRATION RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
A. You and Kickshaw agree to resolve all disputes arising between us through binding and final arbitration instead of through court proceedings. All controversies, claims, counterclaims, or other disputes arising between you and Us (each a Claim) shall be submitted for binding arbitration. The Federal Arbitration Act governs the interpretation and enforcement of the agreement to arbitrate in this Section 21. Arbitration shall be initiated through JAMS, Inc. (formerly Judicial Arbitration and Mediation Services), an established alternative dispute resolution provider (ADR Provider) that offers arbitration as set forth in this section. If JAMS, Inc. is not available to arbitrate, you and Kickshaw shall select an alternative ADR Provider. If an alternative ADR Provider cannot be agreed on, then the Superior Court of San Francisco County shall appoint the ADR Provider. If JAMS, Inc. is available to arbitrate but the parties wish to use an alternative provider, the parties may mutually agree on an alternative ADR provider. The “streamlined” or such similar rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating or demanding arbitration. The JAMS rules governing the arbitration are available online at www.jamsadr.com. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
B. If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Kickshaw will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. However, Kickshaw will not pay your share of the arbitration fees if the arbitrator finds that either your claim or the relief sought is frivolous or brought for an improper purpose, as measured by the standards of Federal Rule of Civil Procedure 11(b).
C. This arbitration agreement does not preclude you from seeking action by federal, state, or local government agencies. You and Kickshaw also have the right to bring qualifying claims in small claims court. In addition, you and Kickshaw retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with this Agreement, nor a waiver of the right to have disputes submitted to arbitration as provided in this Agreement.
D. NEITHER YOU NOR KICKSHAW MAY ACT AS A CLASS REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL, NOR PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, WITH RESPECT TO ANY CLAIM. CLAIMS MAY NOT BE ARBITRATED ON A CLASS OR REPRESENTATIVE BASIS. The arbitrator can decide only your and Kickshaw’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
E. If any provision of this Section 21 is found to be invalid or unenforceable, except for subparagraph (d), then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section 21 shall continue in full force and effect. No waiver of any provision of this Section 21 will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Agreement. If subparagraph (d) is found to be invalid or unenforceable then neither you nor Kickshaw shall be entitled to arbitration.
F. This Arbitration Provision shall survive termination of your relationship with Kickshaw.
G. If you do not want to be bound to this Section 21 regarding the arbitration of disputes, you must opt out of it within 30 days of the arbitration provisions of this Section 21 first becoming applicable to you (i.e., within 30 days of you first agreeing to a version of these Terms of Service containing these arbitration provisions). To opt out of the arbitration provisions of this Section 21, you must send a letter or postcard to Kickshaw and state that you do not want to be bound by the arbitration provisions of this Section 21. Your letter or postcard must be sent to the address identified in Section 25.
H. In any circumstances where the foregoing arbitration provisions permit the parties to litigate in court (including but not limited to in the event you opt out of arbitration pursuant to the preceding subparagraph (g)), the parties hereby agree to submit to the personal jurisdiction of the San Francisco County Superior Court, for such purpose.
No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of these Terms of Service shall impair any such right or power or be construed to be a waiver thereof. The terms and conditions of these Terms of Service may be waived or amended only in writing and only by the party that is entitled to the benefits of the term(s) or condition(s) being waived or amended. Unless stated otherwise, all remedies provided for in these Terms of Service shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
If any provision of these Terms of Service or any word, phrase, clause, sentence, or other portion thereof should be held to be unenforceable or invalid for any reason, then provided that the essential consideration for entering into these Terms of Service on the part of any party is not unreasonably impaired, such provision or portion thereof shall be modified or deleted in such manner as to render these Terms of Service as modified legal and enforceable to the maximum extent permitted under applicable laws.
The party entering into these Terms of Service hereby acknowledges, represents and warrants that he or she is expressly and duly authorized to enter into these Terms of Service and to legally bind said party to these Terms of Service.
You may contact Us by writing or calling us at the address, email address and/or telephone number listed below:
- Mailing Address: Kickshaw Inc. 156 1/2 27th Street, San Francisco, CA 94110
- Email: email@example.com
- Phone: 1-415-842-9463
PLEASE PRINT A COPY OF THESE TERMS OF SERVICE FOR YOUR RECORDS AND PLEASE CHECK THE WEBSITE FREQUENTLY FOR ANY CHANGES TO THESE TERMS OF SERVICE.