Last updated: November 16, 2018
Kickfin shall grant you a unique and private Account accessible on the Site through which you will receive Kickfin services (the “Kickfin Services”). The Account shall be a record of Transactions. Kickfin shall provide you with access codes for the Account. You may not disclose such codes or permit any third party to use them on penalty of forfeiting the whole of the Account. You assume full responsibility for the use of your Account and all related claims, losses or other liabilities. You will be invited to select preferences within the Account that will apply to the Kickfin Services; you assume exclusive responsibility for such selections even if they contain errors on the part of you or cause losses to you. Except as required to deliver the Kickfin Services or as otherwise required by law, Kickfin shall not grant any third-party access to your Account. All proprietary and trade secret rights relating to the Kickfin System shall be and remain the property of Kickfin. Nothing in this Agreement shall confer or grant to you any Intellectual Property Rights in the Kickfin System.
The Account is not a bank account or other form of financial account. The Account shall terminate on any termination of this Agreement or any suspension of the supply of the Kickfin Services to you.
2. Tip Claims
You represent to Kickfin that you have provided services (for example, waitering services) (the “Service Rendered”), as an employee or agent, to a business that has employed or retained you (the “Merchant”). The Kickfin Services are not compatible with all Merchants. In order for a Merchant to be compatible with Kickfin Services, they must first be approved by Kickfin.
You further represent that, in exchange for your Service Rendered to the Merchant, the Merchant has given you a claim against the Merchant for tips, gratuities or other similar amounts owing by the Merchant to you (“Tip Claims”). For the purposes of Kickfin Services, the amount of each Tip Claim is the amount indicated by an approved Merchant to Kickfin under the Merchant’s agreement with Kickfin (the “Merchant Terms”), which amount is reported to you in your Account. If you believe that the Tip Claim amount indicated in your Account is incorrect, you agree to address that complaint solely to the Merchant and not to Kickfin. Kickfin shall have no obligation or liability for incorrect Tip Claims reported by a Merchant nor any obligation to purchase a Tip Claim from you. Kickfin will not adjust the Tip Claim amount reported in the Account without consent of the Merchant. After Kickfin purchases a Tip Claim from you, it will present that Tip Claim to Merchant for the Merchant to pay Kickfin the amount of that Tip Claim.
3. Privacy Consent
If you have any questions or concerns about Your Data, please contact Kickfin at the contact information posted on the Site.
4. Offer and Acceptance of the Sale of Tip Claims
You offer to sell to Kickfin each Tip Claim as and when they are posted to the Kickfin System by Merchant (each an “Offer”). If Kickfin accepts one or more of such Offers, it shall indicate the same by providing you confirmation of the acceptance in the Account and paying the amount thereof to your Deposit Account. Kickfin is under no obligation to accept all your Offers. As of when Kickfin indicates that it is accepting an Offer in the Account and you have received the amount of a Tip Claim from Kickfin, you hereby assign all right, title and interest in the Tip Claim to Kickfin so that Kickfin can collect the amount thereof from Merchant. On request by Kickfin, you shall confirm such assignment to Merchant or any other third party, as required to assist Kickfin in exercising its rights as the rightful owner of the Tip Claim. The purchase by Kickfin of Tip Claims from you is not a loan or any other form of financing. The purchase of Tip Claims is without recourse to you; you do not guarantee performance by Merchant under the Tip Claim. If the Merchant does not pay on the Tip Claim, Kickfin has no recourse against you.
In consideration of the Tip Claim, Kickfin shall pay the face-value of the Tip Claim to your Deposit Account within five (5) business days of acceptance of Kickfin’s acceptance of the Offer in the Account. As additional consideration for Tip Claim purchases by Kickfin under this Agreement, you agree to share Your Data with Kickfin (for the purposes indicated herein) and otherwise performing under this Agreement. The Site shall indicate which forms of Deposit Account (e.g. debit card, PayPal account etc.) shall work with the Kickfin Services. If your Deposit Account is not integrated with the Kickfin Services, Kickfin shall not purchase your Tip Claims.
If the Merchant pays a Tip Claim to you, despite the purchase of such Tip Claim by Kickfin, then you shall remit the amount of such Tip Claim to Kickfin on receipt thereof. You shall not dispose of any of your rights in Tip Claims other than to Kickfin hereunder.
You shall indemnify and hold harmless Kickfin, and its affiliates against all losses, damages, claims, liabilities and expenses (including reasonable attorney’s fees) incurred by Kickfin resulting from: (i) claims asserted by Kickfin for monies owed to Kickfin from you; (ii) actions taken by Kickfin in reliance upon any fraudulent, misleading or deceptive information or instructions provided to Kickfin; and (iii) any breach by you of this Agreement.
8. LIMITATION OF LIABILITY.
IN NO EVENT WILL KICKFIN BE LIABLE FOR ANY CLAIMS ASSERTED BY YOU UNDER ANY LEGAL THEORY FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS WAIVED BY YOU, EVEN IF KICKFIN HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN THE EVENT THESE CLAIMS ARE NONETHELESS RAISED, YOU WILL BE JOINTLY LIABLE FOR ALL OF KICKFIN’S ATTORNEY’S FEES AND EXPENSES RESULTING THEREFROM. KICKFIN’S MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL BE THE AMOUNT OF TIP CLAIMS PURCHASED BY KICKFIN FROM YOU IN THE FIVE (5) DAYS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE EVENT GIVING RISE TO LIABILITY.
9. Representations and Warranties.
You state and covenant the following as of the date hereof and during the term of this Agreement:
9.1 Accurate Business Information. All information (financial and other) provided by or on behalf of you to Kickfin in connection with the execution of or pursuant to this Agreement is true, accurate and complete in all respects. You shall furnish Kickfin such information as Kickfin may request from time to time.
9.2 Reliance on Information. You acknowledge and agree that all information provided by or on behalf of you will be relied upon by Kickfin in connection with its decision to purchase a Tip Claim from you.
9.3 Compliance. You are in compliance with any and all applicable federal, state and local laws and regulations and rules. You are not in default under your agreement with Merchant that gives rise to each Tip Claim. You are the rightful owner of each Tip Claim subject to an Offer.
9.4 Authorization. You have full power and authority to enter into and perform the obligations under this Agreement, all of which have been duly authorized by all necessary and proper actions.
9.5 You not Indebted to Kickfin. You are not a debtor of Kickfin as of the date of this Agreement.
9.6 Good Faith Tip Claim. All amounts received by you from Kickfin attributable to the Tip Claim purchased by Kickfin hereunder shall arise from bona fide services performed by you for Merchant.
9.7 Tax Reporting. You will look to Merchant and yourself, and not to Kickfin, to make all necessary tax filings concerning the proceeds of any Tip Claim purchase under this Agreement.
10. Term and Termination.
This Agreement shall remain in effect until terminated by you or us. Kickfin may terminate this Agreement by giving you notice in your Account at any time for any reason or for no reason. Kickfin may terminate this Agreement on the occurrence of an Event of Default as described below. You may terminate this Agreement by giving Kickfin at least ten (10) days prior written notice of termination in accordance with the Notice section herein. No termination of this Agreement shall diminish the rights of Kickfin in Tip Claims purchased prior to termination.
11. Events of Default and Remedies
The occurrence of any of the following events shall constitute an “Event of Default” hereunder:
11.1 you violate any term or covenant in this Agreement or any other agreement with Kickfin or any of its Affiliates;
11.2 any representation or warranty by you in this Agreement shall prove to have been incorrect, false or misleading in any material respect when made;
11.3 notifying Kickfin of your intent to breach this Agreement; or
11.4 you change the Deposit Account without the prior written consent of Kickfin.
You will inform us of any errors in the Kickfin Services and Kickfin shall use commercially reasonable efforts to correct them. You shall cooperate in the investigation of such errors.
In case any Event of Default occurs Kickfin may, at its discretion, proceed to protect and enforce its rights or remedies by suit in equity or by action at law, or both, whether for the specific performance of any covenant, agreement or other provision contained herein, or to enforce the discharge of your obligations hereunder or any other legal or equitable right or remedy. All rights, powers and remedies of Kickfin in connection with this Agreement may be exercised at any time by Kickfin after the occurrence of an Event of Default, are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity.
You shall pay to Kickfin all reasonable costs associated with (i) an Event or Default, (ii) breach by you of the covenants in this Agreement and the enforcement thereof, and (iii) the enforcement of Kickfin ‘s remedies set forth in this Agreement, including but not limited to court costs and attorneys’ fees.
13.1 Notices. Except as otherwise set forth herein, any notice, demand, request or other communication required or permitted to be given under this Agreement shall be in writing and delivered personally, or sent by prepaid registered mail, return receipt requested: to Kickfin at the postal address provided therefore on the Site; to you at the address provided therefore upon registration with the Site; or to such other address as either party may have previously indicated to the other in writing in accordance with the foregoing. Any such notice, request, demand or communication shall be deemed to have been received on the day it was delivered personally, or on the fifth (5th) day following mailing, unless there is a disruption of any kind of postal service.
13.2 Independent Contractor. Neither party has any right to create any obligations on the part of the other party, without the other’s prior written consent. Nothing in this Agreement or the course of dealing of the parties shall be construed to constitute the parties hereto as partners, joint ventures or agents or employees of one another or as authorizing either party to obligate the other in any manner.
13.3 Amendments to this Agreement. From time to time Kickfin will post amendments or revisions to this Agreement on the Site. Kickfin will provide notice of these amendments or revisions to you through the Site or the Account. If the amendment or revision is required in order for Kickfin to remain in compliance with applicable laws or payment processor regulations, or is required by Kickfin’s financial institution or applicable law, then the amendment or revision shall take effect as of when it is posted to the Site. If, on the other hand, the amendment or revision is not required under applicable law or for the Kickfin Services to remain in compliance with requirements of a payment processor or financial institution, then the amendment shall take effect as of the date stated in the Site notice and, provided you do not close your Account prior to that date, then you shall be deemed to have accepted the amendment or revision. Other than as provided in this section, this Agreement may not be amended except by express consent of both parties through the Site or by such other means as Kickfin may reasonably prescribe.
13.4 Confidentiality. The terms of this Agreement and the information exchanged hereunder are confidential and shall not be disclosed by you without permission of Kickfin. Kickfin has the express right to use all information obtained hereunder to provide the services contemplated herein and Kickfin can also use information provided by you under this Agreement on an anonymous basis to improve its services and reduce risk.
13.5 Assignment. Neither you nor any of your successors may assign this Agreement, or any rights hereunder, directly or by operation of law, without the prior written consent of Kickfin which consent may be withheld for any reason, at Kickfin’s sole discretion. Any assignment without such consent shall be void and of no effect. Kickfin may assign any of its rights or obligations hereunder without prior notice to or consent from you.
13.6 Successors. This Agreement and the provisions herein shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
13.7 Lost Property / Escheatment. If, for whatever reason, Kickfin is unable to contact you to complete the purchase of a Tip Claim, then after ten (10) months, Kickfin reserves the right to remit the amount thereof to government authorities responsible for taking possession of lost property in the jurisdiction where you last indicated you live or in Kickfin’s jurisdiction.
13.8 Enforcement. You shall be liable for and shall indemnify and reimburse Kickfin for any and all reasonable attorneys’ fees and other costs and expenses paid or incurred by Kickfin in the enforcement of this Agreement, or in collecting any amounts due from you hereunder, or resulting from any breach of any of the terms or conditions of this Agreement by you.
13.9 Remedies. All remedies of either party hereunder are cumulative and may be exercised concurrently or separately. The exercise of any one remedy shall not be deemed to be an election of such remedy and shall not preclude the exercise of any other remedy. No failure on the part of either party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver of such right or remedy.
13.10 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the parties that all other provisions of this Agreement be construed to remain fully valid, enforceable and binding on the parties.
13.11 Governing Law and Choice of Forum. This Agreement will be deemed to have been made and delivered in the State of California and will be governed as to validity, interpretation, construction, effect and in all other respects exclusively by the laws of the State of California, without giving effect to its conflicts of laws rules. The parties hereto agree that: (i) any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof (including without limitation the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding this arbitration provision), or to the use of the Kickfin Services will be settled by binding personal arbitration by one (1) arbitrator, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. If, for any reason, a dispute relating to this Agreement or the transactions contemplated hereby is deemed outside the scope of this agreement to arbitrate, or if this agreement to arbitrate is deemed unenforceable or inapplicable (which decision regarding scope, enforceability, or applicability shall be in the exclusive authority and jurisdiction of the arbitrator as stated above), to the extent outside the scope, unenforceable or inapplicable, such legal suit, action or proceeding shall be instituted exclusively in a state court in San Francisco County, California, or in the United States District Court, Northern District of California; (ii) the parties each waive the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER. Further, unless both parties otherwise agree in writing, neither the arbitrator nor a judge may consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding relating to this Agreement. If this specific paragraph is held unenforceable, then the entirety of the agreement to arbitrate will be deemed void, but this Section shall otherwise remain enforceable. Except as provided in the preceding sentence, this Section will survive any termination of this Agreement; (iii) the arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules last in effect as of the date the Demand for Arbitration was properly sent, except as modified by this Section (the “AAA Rules“). (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879). The Federal Arbitration Act will govern the interpretation and enforcement of this section; (iv) a party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration by first class mail using the form provided by the AAA. The Demand for Arbitration must be provided within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after two (2) years from when the aggrieved party knew or should have known of the controversy, claim, dispute or breach; (v) the arbitrator will be an attorney licensed to practice law in the State of California who is, at the time of the Demand for Arbitration, practicing in commercial law or banking law. If the parties are unable to agree upon an arbitrator within seven (7) days of actual receipt of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules last in effect as of the date the Demand for Arbitration was properly sent pursuant to this Section; (v) the arbitration will be conducted in San Francisco County, California, in English. If the claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents the parties submit to the arbitrator. If a claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration; (vi) the arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If a party prevails in arbitration it will be entitled to an award of attorney’s fees and expenses, to the extent provided under applicable law, and (vii) each party’s responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
13.12 Whole Agreement. References to “this Agreement” include any Account, schedules, supplementary agreements, addendum, appendixes and amendments and any other agreements, schedules appendixes and amendments promulgated by Kickfin and furnished to you from time to time. This Agreement replaces any earlier versions hereof appearing on the Site or otherwise.
13.13 Survival. The following provisions hereof shall survive termination hereof: 6 Limitations, 7 Indemnification, 8 Limitation of Liability, 9 Representations and Warranties, 12 Remedies, 13 General and 14 Glossary.
The following terms have the definitions set out below in this Agreement:
“Account” means an account made available to you by Kickfin by which you can view transactions and provide payment instructions for the purchase of Tip Claims.
“Affiliate” means, in relation to a Person, another Person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or common control with the Person, or a Person’s principal partners, shareholders, or owners of some other ownership interest;
“Deposit Account” means an account maintained by you at a U.S. financial institution or such other U.S. payment receipt method as Kickfin may approve and that you have indicated as acceptable in the Account;
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction;
“Kickfin System” means a cloud-based system operated by Kickfin that allows you and the Merchant to access their Account, the Services and facilitate Transactions;
“Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity; and
“Transaction” means: (i) the report of Tip Claim owing to you from the Merchant; (ii) the purchase of a Tip Claim by Kickfin from you; (iii) the collection and storage of Your Data by Kickfin as part of the Kickfin Services