Terms and Conditions

THESE TERMS GOVERN YOUR USE OF THE SITE AND SERVICES PROVIDED BY KIDS KICKING CANCER.

1. Definitions

A. “Affiliate(s)” means any entity that controls, is under common control with, or is controlled by either party, where “control” means the ownership, direct or indirect, of a majority of an entity’s equity or some other interest entitling or otherwise allowing the owner to direct the affairs of such entity, specifically including without limitation, any and all subsidiaries and affiliates of which either party owns, directly or indirectly, twenty-five percent (25%) or more of the voting securities.

B. “Breath Brake®” is the software application developed by Kids Kicking Cancer for mobile devices and tablets that operates on the iOS and/or Android platform.

C. “Data” includes both Non-Personal Information and Personally Identifiable Information.

D. “Kids Kicking Cancer,” “we,” “us” and “our” mean Kids Kicking Cancer.

E. “Services” means the products and services provided through the Site.

F. “Site” refers to the Website, and other related websites, blogs, domains, mobile sites, online services and applications, such as Breath Brake®, maintained by Kids Kicking Cancer.

G. “Website” means www.heroescircle.org.

H. “You” and “your” mean the individual or entity visiting or using the Site, including your child who on his/her behalf you access or use the Site or on who’s behalf you authorize access to use the Site and any other Services.

2. ACCEPTANCE OF TERMS

A. Kids Kicking Cancer provides Services to you through the Site, subject to these Terms. You are responsible for compliance with these terms related to your access or use of the Site and any Services, as well as the actions of any child you have authority over that you authorize to access or use of the Site.

B. By using or accessing the Site or the Services, you agree to these Terms. Capitalized terms not defined here have the meanings set forth herein. The Privacy Policy is incorporated in these Terms by reference. The Privacy Policy can be found at https://heroesscircle.org/privacy-policy. We may update periodically update these Terms. If we do this and the changes are material, we will post a notice that we have made changes to the Terms on our website at www.heroescircle.org (the “Website”) for at least 7 days before the changes are made, and we will indicate the date these terms were last revised at the top of the Terms. Any revisions to these Terms will become effective at the end of that 7 day period.

C. You acknowledge that these Terms constitute a contract between you and Kids Kicking Cancer, even though it is electronic and is not physically signed by you and Kids Kicking Cancer. You further acknowledge that these Terms govern your use of the Services and, except for written agreements or addendums signed by the parties that specifically modify or that conflict with these Terms, these Terms supersede any other agreements between you and Kids Kicking Cancer.

3. AVAILABILITY OF THE SITE

You acknowledge that there may be interruptions in the Service or events that are beyond our control that may affect the Services in whole or in part. While we use reasonable efforts to keep the Site accessible, the Site may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of our control, Site access may be interrupted, suspended or terminated. You further understand that there may be interruptions in service or events on third-party sites that may affect your use of the Services and that are beyond our control to prevent or correct. Notwithstanding anything to the contrary herein, interruptions in the Services shall not be a basis for any claim you may have against us.

4. SERVICES AND THIRD-PARTY SERVICES

A. Services. The Site includes information related to the Services that Kids Kicking Cancer offers or may offer. The Services also include, in addition to the Site, all software, data, text, images, sounds, videos, and other content made available through the Site (collectively, “Content”). Any new features added to or augmenting the Services are also subject to these Terms.

B. Third-Party Services/External Sites. The Services may contain links to, or otherwise may allow you to connect to and use certain third-party products, services or software under separate terms and conditions (collectively, “Third-party Services”) in conjunction with our Services. If You decide to access and use such Third-party Services, be advised that your use is governed solely by the terms and conditions of such Third-party Services, and we do not endorse, are not responsible for, and make no representations as to such Third-party Services, their content or the manner in which they handle your data. Kids Kicking Cancer is not liable for any damage or loss caused or alleged to be caused by or in connection with your access or use of any such Third-party Services, or your reliance on the privacy practices or other policies of such Third-party Services.

5. INTELLECTUAL PROPERTY RIGHTS

A. Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “ Intellectual Property Rights” ). The rights granted to you to use the Services under these Terms do not convey any additional rights in the Services, or in any Intellectual Property Rights associated therewith.

B. You own the information and content you provide Kids Kicking Cancer or input on third-party websites through the Services. You grant Kids Kicking Cancer a nonexclusive, revocable, worldwide, perpetual, unlimited fully paid up and royalty-free right to use copy, prepare derivative works of, distribute, publish, remove, retain, add, process, or analyze the foregoing described information and content. By providing information or content to us or to third-parties through the Services, you represent and warrant that you are entitled to and authorized to submit the information and content and that the information and content is accurate, not confidential, and not in violation of any contractual restrictions or other third-party rights.

C. Kids Kicking Cancer shall have an unlimited fully paid up and royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you.

D. Kids Kicking Cancer’ s product and service names, and logos used or displayed on the Services are registered or unregistered trademarks of Kids Kicking Cancer (collectively, “ Marks” ). Kids Kicking Cancer’s Marks may not be used without permission. Kids Kicking Cancer is not granting you a license under any intellectual property right to the Marks. Other trademarks, logos, and trade names that may appear on the Site or through the Services are the property of Kids Kicking Cancer and its licensors (“Third-party Marks”). We are not granting you a license under any intellectual property right to the Third-party Marks. You may not remove any Marks, Third-party Marks or other source indicators from any part of Kids Kicking Cancer’s content.

E. All rights, title and interest in and to the Services and its components, including all related intellectual property rights, will remain with and belong exclusively to Kids Kicking Cancer and its third-party vendors.

F. Upon access to the Services being granted by Kids Kicking Cancer to you, and upon the condition that you comply with all of your obligations under these Terms, Kids Kicking Cancer grants you a non-exclusive, non-transferable, revocable license to access and use the Services (for the particular item registered for or purchased during the applicable term of the subscription or until the subscription to use the Services is terminated) and the Site, strictly in accordance with these Terms and subject to all the limitations set forth in these Terms. This license does not provide you with any rights for any other non-commercial or commercial purposes. If any right from a third-party terminates that Kids Kicking Cancer has obtained rights that relate to the Services, then Kids Kicking Cancer may terminate this license in whole or in part.

6. ACCOUNT REGISTRATION

A. Subject to these Terms, you agree to access and use the Services only for your own internal purposes as contemplated by these Terms.

B. To be eligible to use the Services, you must meet the following criteria and represent and warrant that you: (1) are 18 years of age or older or your parent/guardian has provided verified consent authorizing you to use the Services; (2) are not currently restricted from the Services, or not otherwise prohibited from having a Kids Kicking Cancer account, (3) have full power and authority to enter into these Terms for yourself and, if applicable, the minor child registering to use the Services, and doing so will not violate any other agreement to which you are a party or any law or court order; (4) will not violate any rights of Kids Kicking Cancer, including intellectual property rights such as patent, copyright or trademark rights; and (5) agree to provide at your cost all equipment, software, and internet access necessary to use the Services.

7. USE OF THE SERVICES

A. You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third-party, other than as expressly permitted by these Terms; (b) use the Services to process data on behalf of any third-party, (c) modify, adapt or hack the Services to falsely imply any sponsorship or association with Kids Kicking Cancer, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (d) use the Services in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law, (e) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Services; (g) use the Services to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (h) attempt to use any method to gain unauthorized access to any paid features of the Site; (i) unless otherwise explicitly agreed to in writing by Kids Kicking Cancer, use the Site or any content obtained from it to develop, as a component of any information, storage and retrieval system, database, information base, or similar resource (in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism; (j) use automated scripts to collect information from or otherwise interact with the Site or the Services; (k) deep-link to the Site for any purpose (other than Kids Kicking Cancer’ s home page), unless expressly authorized in writing by Kids Kicking Cancer; (l) try to use, or use the Services in violation of these Terms; (m) use the Services for any purpose competitive with Kids Kicking Cancer; or (n) process through the Services any data belonging to another person or entity without obtaining the proper authorization and consent to do so.

B. You are responsible for all information, data, text, messages or other materials that you post or otherwise transmit via, to or through the Services. You are responsible for maintaining the confidentiality of your login and account, and are fully responsible for any and all activities that occur under your login or account. You agree and acknowledge that your login may only be used by one (1) person, and that you will not share a single login among multiple people. You may create separate logins for as many people as your membership or subscription allows. You agree that you will not sell, trade or otherwise transfer your login or account to another party and that you will not, unless otherwise specifically agreed to in writing by Kids Kicking Cancer, charge anyone for access to any portion of the Site, or any information therein. You agree that you are responsible for anything that happens through your account until you cancel and close your account or prove that your account security was compromised due to no fault of your own.

C. We offer our Services to schools, school districts, school administrators, and related entities, organizations and individuals who use our Services on their behalf (collectively, “Schools“). In this context, please be aware that our Services and certain content Schools provide may be subject to the Family Educational Rights and Privacy Act (“FERPA“), the Protection of Pupil Rights Amendment (“PPRA“) and other laws or regulations applicable to student information. FERPA is a Federal law that applies to student “education records” (as defined by FERPA in 20 U.S.C. § 1232g(a)(4)(A)). PPRA is a Federal law that applies to the protection of students in surveys, analyses and evaluations (see 20 U.S.C. § 1232h). For a brief summary of FERPA, please visit the following link: Summary of FERPA. For a brief summary of PPRA, please visit the following link: Summary of PPRA. If you are a School using our Services, you hereby represent and warrant that you comply (and will comply) with your responsibilities under FERPA, PPRA and any other laws or regulations applicable to student information in connection with our Services. Such responsibilities include, without limitation, receiving consent from, or providing notice to (as applicable), eligible students or parents regarding the maintenance and/or use of such information. We recommend that all Schools provide appropriate disclosures to students and parents regarding their use of service providers such as Kids Kicking Cancer. If you are a School using our Services, you are solely responsible for any and all student information submitted and you represent and warrant that you have the right to disclose such information and allow the processing of that information through the Site.

8. DATA PRIVACY AND SECURITY

A. In providing you the Services we shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of your personal data.

B. You agree that Kids Kicking Cancer can access your account information in order to respond to your service requests and/or as necessary, in our sole discretion, to provide you with the Services. We will not disclose such data except if compelled by law, permitted by you, required for the provision of the Services, or pursuant to the terms of the Kids Kicking Cancer Privacy Policy, which is available at https://kidskickingcancer.org/privacy-policy and is incorporated into these Terms.

C. The Privacy Policy governs our treatment of any information, including personally identifiable information, you submit to us as provided for in the Privacy Policy. Please note that certain information, statements, data, and content which you may submit to or through the Services may reveal your or a third-party’s gender, ethnic origin, nationality, age, and/or other personal information about you or others. You acknowledge that your submission of any information, statements, data, and content to us is voluntary on your part and you have the authority to disclose said information for the applicable third-party. The Privacy Policy is incorporated into these Terms by reference.

D. You agree that prior to providing personally identifiable information or any protected information about a third-party individual on the Site or submitting said information through the Services, you will obtain the consent/authorization from the third-party individual you are submitting information about through the Services and disclose in your privacy policy the following: (i) the collection and processing of data from each third-party individual; (ii) use of personally identifiable information belonging to each third-party individual; (iii) the use of personally identifiable information from the third-party individual after assistance is rendered by you to that person; (iv) the sharing of personally identifiable information of each third-party individual with other organizations through the Services; and (v) any other required authorizations necessary to share and utilize each third-party individual’ s personally identifiable information and aggregate data derived by Kids Kicking Cancer from each individual.

9. CANCELLATION AND TERMINATION

A. If applicable: You may cancel your membership or subscription with Kids Kicking Cancer at any time; however, unless Kids Kicking Cancer is in breach of this Agreement and does not cure said breach within thirty (30) days of receiving written notice from you of an actual breach, identifying specifically the nature of the breach, you are not entitled to any refunds and you will be responsible for any fees for the Services through the end of the then current term. We may suspend or cancel your membership or subscription without notice or refund to you if you violate this Agreement. If your membership or subscription is cancelled, Kids Kicking Cancer reserves the right to remove your membership or subscription information (also referred to as “ account information” ) along with any settings associated with your membership, subscription or other use of the Services (“ account settings” ) from our servers with no liability or notice to you. Once your account information and account settings are removed, you will not be able to recover this data and you will lose access to all of your content (except that content stored/published to third-party websites, that data will remain on said third-party websites pursuant to those website’ s terms and conditions).

B. Kids Kicking Cancer reserves the right to (i) modify or discontinue, temporarily or permanently, the Services (or any part thereof) and (ii) refuse any/all current and future use of the Services, suspend or terminate your account or any part thereof (or your use of the Services), and remove and discard any of your content within the Services if we believe that you have violated these Terms. Kids Kicking Cancer will use all reasonable efforts to contact you directly via email to warn you prior to suspension or termination of your account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of your use of Services, and may be referred to law enforcement authorities. Kids Kicking Cancer shall not be liable to you or any third-party for any modification, suspension or discontinuation of the Services.

10. DISCLAIMER OF WARRANTIES AND LIABILITY

A. THE SERVICES, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND KIDS KICKING CANCER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

B. KIDS KICKING CANCER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES, CONTENT OR MATERIALS FROM OR RELATED TO THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SITE OR THE SERVICES, SERVERS, OR ANY PLATFORM APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF ANY SUCH SOFTWARE, CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING A FORM OR DOCUMENT IS DISCLAIMED. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA OR SOFTWARE (INCLUDING ANY MOBILE CLIENT) FROM OR THROUGH THE SITE, THE SOFTWARE, OR ANY PLATFORM APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR MOBILE DEVICE OR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.

C. YOU ACKNOWLEDGE THAT KIDS KICKING CANCER DOES NOT WARRANT THAT INFORMATION OR ADVICE OR ASSISTANCE OR SERVICES OBTAINED BY YOU FROM KIDS KICKING CANCER OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS. KIDS KICKING CANCER DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN THE FUNCTIONING OF THE SITE, EXCEPT AS OTHERWISE EXPRESSLY SETFORTH HEREIN. FURTHERMORE, KIDS KICKING CANCER DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS, PROBLEMS RELATED TO THE SERVICES OR ITS USE, LOSS OF PERSONAL CONTENT ON THE SITE, LOST OR UNDELIVERABLE EMAIL, AND FOR ANY OTHER REASON. UNDER NO CIRCUMSTANCES WILL KIDS KICKING CANCER BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING, BUT NOT LIMITED TO PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE SITE OR THE SERVICES, OR ANY INTERACTIONS BETWEEN USERS OF THE SITE OR THE SERVICES, WHETHER ONLINE OR OFFLINE.

D. KIDS KICKING CANCER CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE AND/OR THE SERVICES.

E. We do not monitor content published through the Services and we are not responsible for content published through the Services. Notwithstanding the foregoing, Kids Kicking Cancer reserves the right to delete, move, or edit messages or materials, including, but not limited to, advertisements, public postings, and messages, that we, in our sole discretion, deem necessary to be removed.

11. LIMITATION OF LIABILITY

A. NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL KIDS KICKING CANCER OR ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY YOU IN CONNECTION WITH THESE TERMS OR THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

B. LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, KIDS KICKING CANCER’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS CLAIMED BY YOU OR ANY THIRD-PARTY ARISING FROM OUR SERVICES, SHALL BE LIMITED TO THE GREATER OF (I) PAYMENTS MADE BY YOU TO KIDS KICKING CANCER FOR THE SERVICES DURING THE SIX (6) MONTHS PRECEDING THE CLAIM OR (II) TEN DOLLARS ($10.00). THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.B. IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FACT THAT NO FEES ARE CHARGED UNDER THESE TERMS OR IF FEES ARE CHARGED, THE FEES WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF KIDS KICKING CANCER WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. KIDS KICKING CANCER HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.

C. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, KIDS KICKING CANCER’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

D. If you are a California resident, you agree to waive California Civil Code Section 1542, which says, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him, must have materially affected his settlement with the debtor.” And, if you are not a California resident, you agree to waive any applicable state statutes of a similar effect.

12. INDEMNIFICATION

You agree to defend, indemnify, and hold harmless Kids Kicking Cancer from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Your breach of these Terms, your obligations under these Terms, or your and your end users’ access to, use, misuse or illegal use of the Site or any Services provided by or through Kids Kicking Cancer. Kids Kicking Cancer will provide you notice of any such claim, suit, or proceeding. Kids Kicking Cancer reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case you agree to cooperate with any reasonable requests to assist Kids Kicking Cancer’ s defense of such matter.

13. ASSIGNMENT

Kids Kicking Cancer may assign these Terms or any of its rights under these Terms to a third-party. You may not, without the express written consent of Kids Kicking Cancer, assign these Terms or any of your rights under these Terms, directly, by operation of law or otherwise, without the prior written consent of Kids Kicking Cancer. Subject to the foregoing restrictions on assignment, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Any assignment in violation of this Section will be void. These Terms shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties hereto.

14. ENTIRE AGREEMENT; AMENDED TERMS

EXCEPT TO THE EXTENT THAT KIDS KICKING CANCER AND YOU HAVE ENTERED INTO AND EXECUTED ANOTHER FULLY INTEGRATED AGREEMENT:

A. These Terms constitute the entire agreement between the parties with respect to the subject matter hereof, all previous understandings whether oral or written having been merged herein. No representations or warranties have been made other than those expressly set forth herein. Without limiting the foregoing, the parties have not relied on any oral statements that are not included in the Terms. The Terms may not be changed, modified, renewed, extended, or discharged or any covenant or provision hereof waived except by an agreement in writing signed by both parties. These Terms supersede prior versions of these Terms.

B. Notwithstanding the foregoing, we may amend these Terms from time to time, in which case the new Terms will supersede prior versions.

15. SEVERABILITY

If any provision of these Terms, or the application thereof under certain circumstances, is held to be invalid or unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms, or the application of such provision under other circumstances, shall remain in full force and effect.

16. RELATIONSHIP; INDEPENDENT CONTRACTOR

Nothing herein contained shall be so construed as to constitute the parties as principal and agent, employer and employee, partners or joint venturers, nor shall any similar relationship be deemed to exist between the parties. Neither party shall have any power to obligate or bind the other party, except as specifically provided herein.

17. SURVIVAL

Sections 2 (Acceptance of Terms), 5.A-F. (Intellectual Property Rights), 7.C (Student Information), 9 (Cancellation and Termination), 10 (Disclaimer of Warranties and Liability), 11 (Limitation of Liability), 12 (Indemnification), 13 (Assignment), 14 (Entire Agreement; Amended Terms), 15 (Severability), 16 (Relationship; Independent Contractor), 17 (Survival), 18 (Governing Law), 19 (Arbitration of Disputes), and 20 (No Waiver) will survive any termination of these Terms.

18. GOVERNING LAW

The validity, interpretation and performance of these Terms shall be governed by the laws of the State of Michigan without giving effect to the conflicts of laws provisions or principals thereof. Subject to the requirement to arbitrate below, you agree to the exclusive jurisdiction of the courts located within the State of Michigan to resolve any disputes between the parties and you agree that proper venue is in Oakland County, Michigan or in the Federal District Courts located in Michigan.

19. ARBITRATION OF DISPUTES

If we cannot amicably resolve any legal dispute or damage claim that should arise from your interactions with the Site, the Services, and/or Kids Kicking Cancer, you agree to resolve any such dispute or damage claim by arbitration. The arbitration proceeding shall be conducted in Oakland County, Michigan, in accordance with the rules of the American Arbitration Association then in effect with one (1) arbitrator to be selected by mutual agreement of both you and Kids Kicking Cancer. If we cannot agree on an arbitrator, then the American Arbitration Association shall select an arbitrator from the National Panel of Arbitrators. The laws of the State of Michigan shall apply to the arbitration proceedings. You agree that the arbitrator cannot award punitive damages to either of us and agree to be bound by the arbitrator’s findings. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, which shall include, but not be limited to, the courts within Oakland County, Michigan.

You agree that (i) no arbitration proceeding hereunder whether a CONSUMER DISPUTE or a BUSINESS DISPUTE shall be certified as a class action or proceed as a class action, or on a basis involving claims brought in a purported representative capacity on behalf of the general public, other customers or potential customers or persons similarly situated, and (ii) no arbitration proceeding hereunder shall be consolidated with, or joined in any way with, any other arbitration proceeding. YOU AGREE TO ARBITRATE A CONSUMER DISPUTE OR BUSINESS DISPUTE ON AN INDIVIDUAL BASIS AND YOU WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION. We agree to the same limitations set forth in this section.

20. NO WAIVER

Kids Kicking Cancer’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.

21. DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible through the Site or any service offered by Kids Kicking Cancer, please notify Kids Kicking Cancer, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA” ). For your complaint to be valid under the DMCA, you must provide the following information in writing:

An electronic or physical signature of a person authorized to act on behalf of the copyright owner;

Identification of the copyrighted work that you claim is being infringed;

Identification of the material that is claimed to be infringing and where it is located on the Services;

Information reasonably sufficient to permit Kids Kicking Cancer to contact you, such as your address, telephone number, and email address;

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 law; and

A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

Kids Kicking Cancer’s designated copyright agent can be reached to receive notifications of claimed infringement at: info@kidskickingcancer.org or at the address below.

22. CONTACTING US

If you have any questions about these Terms, please contact us at info@kidskickingcancer.org or by mail at:

Kids Kicking Cancer
Attn: Privacy Dept.
27600 Northwestern Highway
Suite 220
Southfield, MI 48034

Or call us at:
248-864-8238