Terms of Use

PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.

 

This website, located at www.koochikoo.net, and all of its subpages (“Website”) is provided by Excel Trade, LLC, d.b.a. Koochikoo (“Koochikoo,” “we,” or “our”).

 

We recommend that you review this document in its entirety before accessing or using the Website.

 

These Terms of Use (“Agreement”) govern your use of the Website. These Terms of Use form a legally binding agreement between you and Koochikoo, and you should read them carefully and in their entirety.  These terms, and any subsequent revisions hereto, supersede any other agreements you may have with Koochikoo regarding the subject matter herein.  If you do not agree to be bound by this Agreement, do not access or use any part of the Website. Your continued use of the Website means that you agree and consent to be governed by this Agreement.

 

Koochikoo reserves the right, with or without notice to you, and in its sole discretion to make changes to this Agreement from time to time.  All changes are effective upon posting here.  You are bound by any revisions and, as such, should periodically review this Agreement.

 

THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT WAIVE YOUR RIGHT TO A COURT HEARING OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW OR IF YOU OPT-OUT.

 

Website Ownership, Content and Use

 

The Website contains materials about Koochikoo’s products and business such as written text, images, button icons, pictures, URLs, and the overall arrangement or “look and feel” of such materials, as well as trademarks, logos, and service marks (collectively the “Content”) that unless otherwise indicated, are owned, controlled, and/or licensed by Koochikoo or its respective owners. The Content and the Website are the property of Koochikoo or certain other third parties and protected by copyright, trademark, trade dress, patent or other intellectual property rights and laws. No rights or title to any of the Content contained on the Website shall be considered licensed, transferred or assigned by implication, estoppel or otherwise, to you or any other user at any time.  Subject to all applicable laws, you agree that you will not copy, distribute, republish, modify, create derivative works of, or otherwise use the Content in any unauthorized manner that would violate, infringe, or dilute any of Koochikoo’s exclusive intellectual property rights in the Content or that disparages or discredits Koochikoo.  You acknowledge that you shall not construe anything on the Website as granting any license or right to use any trademark, service mark or logo, either explicitly, implicitly or otherwise.  Koochikoo reserves all rights not expressly granted or relinquished herein in regards to the Website and its Content.

 

As a condition of your use of the Website, you warrant to Koochikoo that you will not use the Website for any purpose that is unauthorized, unlawful, immoral or otherwise prohibited by these terms of use.  Your use of the Website is also conditioned on the veracity of the information you provide.  Any information you provide to this Website, for any purpose, must be correct current and complete.

 

You agree you will refrain from using the Website in any manner that could in any way disable, overburden, damage, or impair the Website or otherwise interfere with any other party’s use and enjoyment of the Website.  You further agree that you will not obtain, attempt to obtain, any materials, content or information by any means not expressly made available or provided for through the authorized use of the Website.

 

Errors on the Website may be corrected when discovered, and we reserve the right to revoke any stated offer to correct any errors or inaccuracies.  Koochikoo reserves the right to suspend or terminate your access to the Website and all of its resources and content, without any notice to you, at any time and at its sole discretion.

 

User-Generated Content

 

By using the Website and posting, uploading, publishing, distributing, or transmitting information such as pictures, reviews, messages, content, or other personal information (collectively, “User Generated Content”) on the Website or other Koochikoo-sponsored forums, blogs, or other communities, you grant Koochikoo a perpetual, unrestricted, unlimited, irrevocable, non-exclusive, fully sub-licensable, royalty-free, worldwide right and license to use, copy, modify, publicly perform, publicly display, reproduce, publish, redistribute, re-sell, and transmit any portion of such User Generated Content, including but not limited to, your name, image, likeness, statements, and/or endorsements, as depicted in the User Generated Content, throughout the world in any type of media now known or later devised for commercial, marketing, advertising and public relations purposes, as it relates to Koochikoo products. You further waive all moral rights in the User Generated Content that you post, upload or submit to the Website. You further represent and warrant that you are the sole author and owner of such content. By posting User Generated Content to the Website, you acknowledge that such content may be publicly viewed and displayed and that you do not have any expectation of privacy regarding such content. 

 

In addition, you give Koochikoo the sole and exclusive right to remove, alter, or change the User Generated Content. Your User Generated Content must not contain or reference any third-party brands or trademarks, infringe the copyright or any other rights of any third party, and must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit or be used for commercial gain.

 

Koochikoo reserves the right, but is not obligated, to review and monitor the User Generated Content on the Website.  Koochikoo further reserves the rights to remove or not post anything that Koochikoo, in its sole discretion, believes to be in violation of these Terms of Use, the law, or otherwise unsuitable.  As set forth above, Koochikoo may terminate an account or deny access to the Website, in its sole discretion.

 

If Koochikoo fails to act with respect to your breach or anyone’s breach of the Agreement, we do not waive our rights to act in respect to any future breaches.

 

You acknowledge that we might not use any User Generated Content and have no obligation to use, post, or publish any User Generated Content even if you give us permission to do so.  By submitting such content you agree to allow us to contact you using whatever contact information you have provided to us regarding any request we may have related to your User Generated Content.

 

Personal Information

 

If through your activities on the Website, you create an account requiring a user name and password to log-in, you are responsible for the security of those log-in credentials and any acts or statements made in connection with the use of those credentials.  If you know or have reason to believe that your log-in credentials have been compromised, it is your responsibility to immediately contact us.

 

All personal information you provide to Koochikoo is treated in accordance with our Privacy Policy.

 

Arbitration and Dispute Resolution

 

This Agreement and any issue or dispute that arises out of or otherwise relates to this Agreement or with your use of the Website, the Privacy Policy, or any matter including Koochikoo regarding this Website (collectively “Disputes”) shall be governed exclusively by the laws of the state of Washington, excluding its conflict of law provisions. If a Dispute arises under this Agreement, you and we agree to first contact each other with a written description of the Dispute, all relevant documents and information, and the proposed resolution. You agree to send Koochikoo a written notice of such dispute to: Excel Trade, LLC, Attn: Legal, 2411 West Halladay Street, Seattle, WA 98199. Koochikoo will contact you by letter or electronic mail at the address or e-mail address that you submit to the Website.

 

If you and Koochikoo are not able to resolve such a Dispute, you and we each agree that any and all Disputes shall be submitted to final and binding arbitration before a single arbitrator of the American Arbitration Association (“AAA”) in a location convenient to you. Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the arbitration demand. We will pay the filing costs, including arbitrator fees. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts of Washington: (i) any dispute, controversy, or claim relating to or contesting the validity of the our proprietary rights, including without limitation, trademarks, service marks, copyrights, or trade secrets; or (ii) an action by a party for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief. You expressly agree to refrain from bringing or joining any claims in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.

 

YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION.

 

You shall have thirty (30) days from the date that you submit your personally identifiable information to opt-out of this arbitration agreement. To opt out of arbitration you must contact us at Excel Trade, LLC, 2411 West Halladay Street, Seattle, WA 98199. If more than thirty (30) days have passed, you are not eligible to opt out of arbitration.

 

Notice and Take-Down Procedures (DMCA Notice)

 

Koochikoo respects the intellectual property rights of others.  If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you can submit a Notice of Claimed Infringement to Koochikoo by providing the following information: 1) identification or description of the copyrighted work or other intellectual property that you claim has been infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, trademark or patent); 2) identification or description of where the material that you claim is infringing is located on the Website, with enough detail that Koochikoo may find it on the Website (please include the URL); 3) your name, address, telephone number, and email address; 4) a statement by you that you have a good faith belief that the use of the material complained of is not authorized by the copyright owner or intellectual property owner, its agent, or the law; 5) and a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf; and 6) a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed.

 

Our agent designated to receive claims of copyright or other intellectual property infringement may be contacted as follows: 1) via mail to Attn: Legal, 2411 West Halladay Street, Seattle, WA 98199, or 2) via email to info@koochikoo.net.  Please title the email “DMCA Notice.”

 

Any notice that fails to comply with the requirements set forth in the DMCA shall not be considered sufficient notice under the law.  Please consult legal counsel before submitting any Notice and Takedown requests.

 

Disclaimer of Warranties and Limitation of Liability

 

Except where otherwise inapplicable or prohibited by law, the Website is offered on an “as is” and “as available” basis. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KOOCHIKOO EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. KOOCHIKOO DOES NOT REPRESENT OR WARRANT THAT YOUR USE OF THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE OR FREE FROM ERROR OR THAT ANY ERRORS WILL BE CORRECTED. IN NO EVENT SHALL KOOCHIKOO OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, TELECOMMUNICATIONS PROVIDERS, AND AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, UNDER ANY CAUSE OF ACTION WHATSOEVER INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE, FOR ANY CLAIM, CAUSE OF ACTION, FEE, EXPENSE, COST, OR LOSS (COLLECIVELY, “CLAIMS”) ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRIVACY POLICY, THE PRODUCTS, OR YOUR USE OF THE WEBSITE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THIS DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY DOES NOT APPLY IN NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENTS ARE THE RESULT OF KOOCHIKOO’S NEGLIGENT, FRAUDULENT OR RECKLESS ACTS OR INTENTIONAL MISCONDUCT.

 

ANY PRODUCTS DESCRIBED ON THE WEBSITE ARE OFFERED ONLY IN THE JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED FOR SALE AND SOLD.  THE WEBSITE DOES NOT CONTAIN ANY OFFERS OR SOLICIATIONS TO ANYONE IN ANY JURISDICTION WHERE SUCH OFFERS OR SOLICITATIONS CANNOT BE LEGALLY MADE OR TO ANYONE WHO IT WOULD BE ILLEGAL TO MAKE SUCH A SOLICITATION.

 

Notice for California Users

 

In Accordance with California Civil Code Section 1789.3, we note that use of the Website is provided free of charge.  If you have a complaint about any of the products, services or resources provided by Koochikoo through the Website, you may reach us at:

 

Excel Trade, LLC

2411 West Halladay Street

Seattle, WA 98199

 

You may also reach out to The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, which may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

 

Links to Other Websites

 

This Website may include links to third-party websites, such as links from advertisers, sponsors, content partners, and third parties. The inclusion of any link on the Website does not imply our endorsement of it, and Koochikoo expressly disclaims any responsibility for the content, the materials, the accuracy of the information, or the quality of the products or services provided by, available through, or advertised on these third-party websites. We shall not be responsible or liable for any loss or damage caused by the use of or reliance on any such material or products available on or through any such website.  We only provide such links to you as a convenience.

 

You acknowledge that you bear all risks associated with access to and use of content provided on any third-party websites linked through the Website, and agree that Koochikoo is not responsible for any loss or damage of any sort you may incur from dealing with a third-party site.  You should contact the site administrator for the applicable third-party site if you have any concerns regarding such links or the content located thereon.

 

Indemnification

 

You agree to defend, indemnify and hold harmless Koochikoo, its officers, directors, shareholders, employees, agents, representatives, service providers and suppliers from and against any and all claims, liabilities, damages, losses or expenses, including reasonable attorney’s fees and costs, which result from any violation of this Agreement, a technical issue experienced by you arising out of or in any way connected with your access to or use of the Site and its Content.  By accessing and using the Website, you are and shall be responsible to any material and User Generated Content you submit through the Website and will indemnify Koochikoo for all claims resulting from such submission(s).  You agree that you are liable of all charges incurred for all orders placed prior to the termination of your account.

 

Koochikoo reserves the right, at its own expense, to assume control of the defense of any matter for which you would be held responsible for indemnifying Koochikoo.  You agree to cooperate with Koochikoo in regard to the defense of any such matter.

 

General Provisions

 

This Agreement constitutes the entire agreement between you and Koochikoo and supersedes any prior version of this Agreement. If any provision of this Agreement is deemed invalid, unlawful, void, or unenforceable by an arbitrator or (if proper) a court of competent jurisdiction, then that provision will be deemed severable from this Agreement, and the remaining provisions shall not be affected thereby and shall continue in full force and effect. Koochikoo reserves the sole and exclusive right to assign any or all of its rights and obligations under this Agreement, in whole or in part, to any party at any time without any notice. This Agreement may not be assigned by you, and you may not delegate your duties under them. Except as expressly set forth in this Agreement, no failure or delay by you or Koochikoo to exercise any rights, powers, or remedies under this Agreement will operate as a waiver of that or any other right, power, or remedy.

 

These Terms constitute a binding Agreement between you and Koochikoo.  Upon your use of the Website, including but not limited to creation and use of your account, these Terms are accepted by you.  By using the Website, you represent that you are of legal age in your jurisdiction, are capable of be entering into this Agreement, and agree to be legally bound to these Terms.

 

If you are unhappy or dissatisfied with the Website, these Terms and Conditions or the Privacy Policy, your only remedy is to stop using the Website.

 

Questions? Contact us at info@koochikoo.net.

 

Last Updated: February 2023

 

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