1.CHANGES TO THESE TERMS. Please review this page from time to time since these Terms may change. The date at the beginning of these Terms indicates the date of the last update to these Terms. We will notify you of material changes to these Terms by posting the amended terms on the Website at least thirty (30) days before the effective date of the changes. If you have a registered account, we will notify you of material changes to these Terms by email at least thirty (30) days before the effective date of the changes. It is therefore very important that you make sure we have a current email address for you on file so that you will receive notice of any material changes. In addition, you will be required to affirmatively accept the new Terms the first time you visit the Website and log in to your account after the new Terms take effect. If you disagree with the proposed changes, you should discontinue your use of the Website before the new Terms take effect.  If you continue using the Website after the new Terms take effect, you will be bound by the modified Terms.  Your continued use of the Website after any change to these Terms indicates your acceptance of the new terms.

2.PRIVACY POLICY. Certain parts of the Website allow you to furnish personal information such as your name, address and other information. Please review our Privacy Policy located at https://www.kickballz/pages/privacy-policy (the “Privacy Policy”) to learn how we handle the information we collect through the Website. The Privacy Policy is part of and is governed by these Terms. By agreeing to these Terms, you agree to be bound by the terms of the Privacy Policy and agree that we may use information collected from you in accordance with its terms.

3.SMS POLICIES. If you sign up for and agree to receive SMS marketing messages from us, the use of SMS messaging is also subject to our SMS Messaging Terms Located at https://terms.pscr.pt/legal/shop/Kickballzapparel/terms_of_service and our SMS Messaging Privacy Policy located at https://terms.pscr.pt/legal/shop/kickballz/privacy_policy.

4.PRODUCTS, CONTENT AND SPECIFICATIONS. All features, content, specifications, products and prices of products and services described or depicted on the Website are subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and provided only for convenience. We make all reasonable efforts to accurately display the attributes of our products, including the applicable colors. However, the actual color you see will depend on your computer system and we cannot guarantee that your computer will accurately display the applicable colors. The inclusion of any products or services on the Website at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and comply with all applicable local, state, federal and international laws (including minimum age requirements) regarding the possession, use and sale of any item purchased from the Website. By placing an order through the Website, you represent that the products ordered will be used only in a lawful manner.

5.SHIPPING LIMITATIONS. When an order is placed through the Website, it will be shipped to the address designated by the purchaser as long as that address complies with the shipping restrictions on the Website and is specified at the time of purchase. All purchases from the Website are made pursuant to a shipment contract. As a result, the risk of loss and title for items purchased from the Website is passed to you upon delivery of the items to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.

6.ACCURACY OF INFORMATION. We attempt to ensure that the information on the Website is complete, accurate and current. Despite our efforts, the information on this Website may occasionally be inaccurate, incomplete, or out of date. We make no representation as to the completeness, accuracy, or currentness of any information on the Website. For example, products included on the Website may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on the Website. In addition, we may make changes in information about price and availability without notice. We will correct any pricing errors on the Website as and when discovered. The Website contains a large number of products and services, and it is always possible that, despite our best efforts, some of the products or services listed on the Website may be incorrectly priced. We will normally verify prices as part of our shipping procedures so that where the correct price is less than our stated price, we will charge the lower amount when shipping the products to you. If the correct price is higher than the price stated on the Website, we will normally, at our discretion, either contact you for instructions before shipping the product, or reject your order and notify you of the rejection. We shall not provide the products to you at the incorrect (lower) price, even after we have sent you an Order Confirmation or a Shipping Confirmation if the pricing error is obvious and unmistakable and could have reasonably been recognized by you as a pricing error.

7.PLACING AN ORDER ACCEPTANCE. Please follow the instructions on the Website to place an order. After receiving an order, we will send you an e-mail acknowledging that we have received your order (“Order Confirmation”). While it is our practice to confirm orders by email, the receipt of an email Order Confirmation does not constitute our acceptance of an order. All orders are subject to acceptance by us, and we will confirm acceptance of your order by sending you an email confirming the shipment of your order (the “Shipping Confirmation”). We will not be obligated to supply any other products or services which may have been part of your order in the same or a separate Order Confirmation. We reserve the right to cancel your order at any time before we have accepted it and we may rescind our acceptance and cancel your order where there has been an obvious error in price or where the products or services are no longer in our inventory. We also reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We may also require verification of information prior to the acceptance and/or shipment of any order.

8.USE OF THE WEBSITE. The Website design and all text, graphics, information, content, and other material displayed on or that can be downloaded from the Website are either the property of, or used with permission by, us and are protected by copyright, trademark and other laws and may not be used except as permitted in these Terms or with the prior written permission of the owner of the applicable material. We, and our licensors, retain all rights in and to the Website. Subject to your compliance with these Terms, you are hereby granted a non-exclusive, limited, non-transferable, revocable license to use the Website for your personal, non-commercial use. You may not modify the information or materials located on the Website in any way or reproduce or publicly display, perform, distribute or otherwise use any of the applicable materials for any public or commercial purpose. Any unauthorized use of any of these information or materials may violate copyright laws, trademark laws, laws of privacy and publicity, and other laws and regulations. Except as otherwise provided in the Terms, you may not, and may not permit others to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer or create derivative works of the Website; (b) sell, license, sublicense, rent, lease, distribute, copy, publicly display, publish, adapt or edit the Website; or (c) circumvent or disable any security or technological features of the Website. You are responsible for maintaining the confidentiality of your account information and password and restricting access to such information and your computer. You agree to accept responsibility for all activities that occur under your account or password.

9.TRADEMARKS AND COPYRIGHTS. Certain trademarks, trade names, service marks and logos used or displayed on the Website are registered and unregistered trademarks, trade names and service marks of us and our affiliates. Other trademarks, trade names and service marks used or displayed on the Website are the registered and unregistered trademarks, trade names and service marks of their respective owners. Nothing contained on the Website grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademarks, trade names, service marks or logos displayed on the Website without our written permission or the written permission of the applicable third party owner. The Website contains copyrighted material, including, without limitation, text, software, photos, audio and video clips, graphics, illustrations, images, logos, and music and sound. The Website is protected by copyright as a collective work, pursuant to U.S. copyright laws, international conventions, and other copyright laws. Kickballz and third-party content providers also own (or have the right to use) copyrights in the content original to them.

10.LINKING TO THE WEBSITE. Creating or maintaining any link from another website to any page on the Website without our prior written permission is prohibited. Running or displaying the Website or any material displayed on this Website in frames or through similar means on another website without our prior written permission is prohibited. Any permitted links to the Website must comply with all applicable laws, rules and regulations.

11.THIRD PARTY LINKS. From time to time, the Website may contain links to websites not owned, operated or controlled by us or our affiliates. All of these links are provided solely for your convenience. If you use these links, you will leave the Website. Neither we nor any of our affiliates are responsible for any content, materials or other information located on or accessible from any other website. Neither we nor any of our affiliates endorse, guarantee, or make any representations or warranties regarding any other website, or any content, materials or other information located or accessible from these websites, or the results that you may obtain from using these websites. If you decide to access any other website linked to or from the Website, you do so entirely at your own risk.

12.SWEEPSTAKES AND CONTESTS. Occasionally, we may offer and/or co-sponsor contests, sweepstakes, and games on the Website. Each of these activities shall be governed by specific rules accessible from the pages of the Website offering the promotion.

13.CONTENT SUBMISSIONS.
(a)Rights in Your Content. From time to time, you may have the opportunity to post, transmit or otherwise make available information, opinions, ideas, images or other content on the Website. By posting, transmitting or sending us any material or content through the Website, you grant to us an irrevocable, royalty-free, perpetual, sub-licensable, assignable, non-exclusive right and license throughout the world to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, digitally perform, publicly perform and display the material or content and/or incorporate the material or content in other works in any form, media or technology now known or later developed, for any purpose whatsoever, commercial or otherwise, without either (i) compensation to you or (ii) your prior approval. By submitting or sending content or material to the Website, you also represent and warrant that (A) the content and material is original to you, (B) no other party has any rights to the content or material, (C) the content and material is not subject to any obligation of confidentiality, attribution or otherwise and that we shall not be liable for any use or disclosure of the content or material, and (D) any so-called “moral rights” associated with the content or material have been waived.

(b)Prohibited Content. You may not post or transmit on or through the Website or send to us any material or content that (i) violates or infringes in any way upon the rights of others or which is otherwise unlawful, threatening, abusive, harassing, defamatory, libelous, derogatory, obscene, bigoted or hateful; (ii) contains viruses, worms, time bombs, Trojan horses, or other harmful or disruptive components; (iii) is or could be construed to be spam mail or any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents. In addition, you may not engage in any activity on the Website that restricts or inhibits any other user from using or enjoying the Website by means of "hacking," "cracking," "spoofing," or defacing any portion of the Website. We shall have the right in our sole discretion to edit, refuse to post or to remove any material submitted to or posted on the Website that we find to be in violation of these terms and conditions or that we otherwise find objectionable or inappropriate for any reason in our sole discretion. You shall be solely responsible and liable for any and all damages resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from any uploading, posting or submission of your content on the Website.

14.DMCA POLICY
(a)Policy. If you believe that your rights under intellectual property laws are being violated by any content or materials posted on or transmitted through the Website, or any products advertised on the Website (“Website Content”), please contact us promptly so that we may investigate the situation and, if appropriate, block or remove the applicable Website Content. It is our policy to comply with the Digital Millennium Copyright Act (“DMCA”). by disabling access to infringing materials, and terminating access of repeat infringers to the Website.

(b)Notification of Infringement. Copyright owners or any agents thereof who believe that any Website Content infringes upon their copyrights may submit a notification pursuant to the DMCA by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material.
4. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail.
5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

The written notice should be sent to our designated agent as follows:

Kickballz Online Store
Copyright Agent
105 E. 34th St. No. 137
New York, NY 10016
Please also note that under Section 512(f) any person who knowingly, materially misrepresents that material or activity is infringing may be subject to liability.

(c) Counter-Notification. If You elect to send us a counter notice, to be effective, it must be a written communication provided to our designated agent that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):
1. A physical or electronic signature of the subscriber.
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
4. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

15.GIFT CERTIFICATES. Gift certificates can only be redeemed via purchases made on the Website and are not redeemable for cash. Any unused balance will be placed in the recipient’s gift certificate account and is not transferable. If your order exceeds the amount of your gift certificate, you must pay for the balance with a credit card. We are not responsible for lost or stolen gift certificates. We make 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.

16.USER INFORMATION. Other than personally identifiable information, which is subject to the Privacy Policy, any material, information, suggestions, ideas, concepts, know-how, techniques, questions, comments, or other communication you transmit or post to this Website in any manner (“User Communications”) are and will be considered non-confidential and non-proprietary. We, each of our affiliates and/or our designees, may use any or all User Communications for any purpose whatsoever, including, without limitation, reproduction, transmission, disclosure, publication, broadcast, development, manufacturing and/or marketing in any manner whatsoever for any or all commercial or non-commercial purposes. We may, but are not obligated to, monitor or review any User Communications. We shall have no obligation to use, return, review, or respond to any User Communications. We will have no liability related to the content of any such User Communications, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise. We retain the right to remove any or all User Communications that includes any material we deem inappropriate or unacceptable.

17.DISCLAIMERS
YOUR USE OF THE WEBSITE IS AT YOUR RISK. THE MATERIALS AND SERVICES PROVIDED IN CONNECTION WITH THE WEBSITE ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. NEITHER WE NOR ANY OF OUR AFFILIATES WARRANT THE ACCURACY OR COMPLETENESS OF THE MATERIALS OR SERVICES ON OR THROUGH THE WEBSITE. THE MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE WEBSITE MAY BE OUT OF DATE, AND NEITHER WE NOR ANY OF OUR AFFILIATES MAKE ANY COMMITMENT OR ASSUME ANY DUTY TO UPDATE THESE MATERIALS OR SERVICES. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY APPLICABLE PROHIBITIONS.

ALL PRODUCTS AND SERVICES PURCHASED ON OR THROUGH THE WEBSITE ARE SUBJECT ONLY TO ANY APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS AND SUPPLIERS, IF ANY. TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, WE HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES LISTED OR PURCHASED ON OR THROUGH THE WEBSITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE HEREBY EXPRESSLY DISCLAIM ALL LIABILITY FOR PRODUCT DEFECT OR FAILURE, CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.

18.LIMITATIONS OF LIABILITY
We assume no responsibility and shall not be liable for any damages to, or viruses that may infect, your computer, telecommunication equipment, or other property caused by or arising from your access to, use of, or browsing the Website or your downloading of any materials, from the Website. IN NO EVENT WILL WE, OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, PARENT CORPORATIONS, AGENTS, SUCCESSORS, ASSIGNS, RETAIL PARTNERS NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR TRANSMISSION OF THE WEBSITE BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE WEBSITE, ANY WEBSITES LINKED TO THE WEBSITE, OR THE MATERIALS, INFORMATION OR SERVICES CONTAINED AT ANY OR ALL SUCH WEBSITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY APPLICABLE PROHIBITIONS.

IN THE EVENT OF ANY PROBLEM WITH THE WEBSITE OR ANY CONTENT, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING THE WEBSITE. IN THE EVENT OF ANY PROBLEM WITH THE PRODUCTS OR SERVICES THAT YOU HAVE PURCHASED ON OR THROUGH THE WEBSITE, YOU AGREE THAT YOUR SOLE REMEDY, IF ANY, IS FROM THE MANUFACTURER OF THE APPLICABLE PRODUCTS OR SUPPLIER OF THE APPLICABLE SERVICES, IN ACCORDANCE WITH THE APPLICABLE MANUFACTURER’S OR SUPPLIER’S WARRANTY, OR TO SEEK A RETURN AND REFUND FOR THE APPLICABLE PRODUCT OR SERVICES IN ACCORDANCE WITH THE RETURNS AND REFUNDS POLICIES POSTED ON THE WEBSITE.

19.INDEMNIFICATION. You agree to indemnify and hold Kickballz, its partners and affiliates, site operators and affiliates, and its and their respective officers, employees, directors and agents harmless from any and all losses, damages, expenses, including reasonable attorneys' fees, rights, claims, actions of any kind and injury (including death) arising out of any third party claims relating to your use of the Website, your violation of these Terms, or your violation of any rights of any third party. You will not be required to indemnify and hold Kickballz or any other indemnified party harmless from and against any applicable claims or demands to the extent resulting from Kickballz’s own negligent conduct.

20.ARBITRATION AND DISPUTE RESOLUTION AGREEMENT

PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT OR TO PURSUE CLAIMS IN A CLASS OR REPRESENTATIVE CAPACITY.
(a)Initial Dispute Resolution. We are available by phone at 888-300-6261 or email at cs@kickballz.com to address any concerns you may have regarding your use of the Website. Most concerns may be quickly resolved in this manner. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.

(b)Agreement to Binding Arbitration. If the parties do not reach an agreed-upon solution within thirty (30) days from the time informal dispute resolution is pursued pursuant to section 20(a) above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Website shall be finally settled by binding arbitration administered by the American Arbitration Association (“AAA”) on a confidential basis in accordance with the provisions of AAA’s Consumer Arbitration Rules, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in court under the law or in equity. The arbitrator’s award shall be final and binding on the parties and may be entered as a judgment in any court of competent jurisdiction, subject to review in accordance with applicable statutes governing arbitration awards. The interpretation and enforcement of these Terms shall be governed by the Federal Arbitration Act.

THE AAA'S RULES GOVERNING THE ARBITRATION MAY BE ACCESSED AT WWW.ADR.ORG OR BY CALLING THE AAA AT 1.800.778.7879. TO THE EXTENT THE FILING FEE FOR THE ARBITRATION EXCEEDS THE COST OF FILING A LAWSUIT, WE WILL PAY THE ADDITIONAL COST. A REQUEST FOR PAYMENT OF FEES SHOULD BE SUBMITTED TO AAA ALONG WITH YOUR FORM FOR INITIATING THE ARBITRATION, AND WE WILL MAKE ARRANGEMENTS TO PAY ALL NECESSARY FEES DIRECTLY TO AAA. IF THE ARBITRATOR FINDS THE ARBITRATION TO BE NON-FRIVOLOUS, WE WILL PAY ALL OF THE ACTUAL FILING AND ARBITRATOR FEES FOR THE ARBITRATION, PROVIDED YOUR CLAIM DOES NOT EXCEED $75,000. THE ARBITRATION RULES ALSO PERMIT YOU TO RECOVER ATTORNEY'S FEES IN CERTAIN CIRCUMSTANCES.

THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.

(c)Class Action and Class Arbitration Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action, and the parties expressly waive their right to file a class action or seek relief on a class basis. Although the parties have agreed that no disputes may proceed as part of a class arbitration, you and we agree that the AAA may consolidate an individual arbitration filed under these Terms with other individual arbitration(s), at the request of any party, if the arbitrations share any common issues of law or fact. The consolidation issue shall be determined by the arbitrator appointed for the earliest filed arbitration. Any disputes over whether an arbitration claim should be consolidated with others, or which arbitrator shall hear any consolidated matter, shall be resolved by the AAA.

If any court or arbitrator determines that the class action and class arbitration waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in section 20(b) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

(d)Fees. Each party will be responsible for its arbitration fees as set by AAA. You will not be required to pay fees and costs incurred by us if you do not prevail in arbitration. For any arbitration in which your total damage claims, exclusive of attorney fees and expert witness fees, are $5,000.00 or less, the arbitrator may, if you prevail, award your reasonable attorney fees, expert witness fees and costs as part of any award, unless the total damages awarded are less than the amount of a settlement offered by us during the initial dispute resolution as outlined above in section 20(a). The arbitrator may also award us our attorney fees, expert witness fees and costs if it is determined that your claim was brought in bad faith, for purposes of harassment, or is patently frivolous. For arbitrations in which your total damage claims, exclusive of attorney fees and expert witness fees, exceed $5,000.00, the arbitrator may grant to the prevailing party, or apportion among the parties, reasonable attorney fees, expert witness fees and costs, to the extent permissible under applicable law.

If multiple individual arbitration proceedings are consolidated pursuant to section 20(c), AAA and the arbitrator may treat the consolidated proceedings as one arbitration for purposes of assessing AAA fees and the arbitrator’s compensation, and you consent and agree not to object to any reduction or elimination of AAA fees or arbitrator compensation.

(e)Exception - Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction and on an individual (non-class) basis only. If a party initiates an arbitration asserting a claim that falls within the jurisdiction of the small claims court, the other party may, at its discretion, require that the arbitration demand be withdrawn and that the claim be filed in the small claims court.

(f)30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in sections 20(b) and 20(c) of these Terms by sending written notice of your decision to opt-out to the following address: 105 E. 34th St., Ste 137, New York, NY 100116 or by email to cs@kickballz.com. The notice must be sent within thirty (30) days of your first use of the Website, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.

(g)Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in section 20(b) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in New York County, New York (except for small claims court actions which may be brought where you reside). The parties expressly consent to exclusive jurisdiction in New York County, New York for any litigation other than small claims court actions.

21.CALIFORNIA USERS. Under California Civil Code Section 1789.3, users of the Website located in California are entitled to the following consumer rights notice: If a user has a question or complaint regarding the Website, please send an email to cs@kickballz.com. California users may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at +1 (916) 445-1254 or +1 (800) 952-5210.

22.TERMINATION. You or we may suspend or terminate your account or your use of this Website at any time, for any reason or for no reason. You are personally liable for any orders that you place or charges that you incur prior to termination. We reserve the right to change, suspend, or discontinue all or any aspect of this Website at any time without notice.

23.GENERAL
(a)Governing Law. These terms are governed by the laws of the State of New York, without respect to its conflict of law principles.

(b)Entire Agreement. These Terms constitute the entire agreement between you and Kickballz with respect to the subject matter of these Terms, and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms.

(c)Waiver; Severability. Kickballz’s failure to enforce a provision is not a waiver of its right to do so later. Subject to section 20(c), if a provision of these Terms is found unenforceable, the remaining provisions will remain in full effect, and an enforceable term will be substituted, reflecting the intent of the unenforceable language as closely as possible.

(d)Fees. You may not assign any of your rights under these Terms, and any such attempt will be void.

(e)Additional Assistance: Contact Information. If you do not understand any of the foregoing Terms or have any questions or comments about the Website or these Terms, we invite you to email us at cs@Kickballzcom.