KaKush - Terms Of Use

Updated on May 1, 2018

Thanks for choosing KaKush, LLC software and mobile applications including kakush.com. This Terms and Conditions of Use Agreement (this "Terms of Use") is a legal agreement between you, or in the event that you represent, or are using the Site on behalf of, a business or other entity, that business or entity (in either case, “you”) and KaKush, LLC (hereinafter "KaKush", "we", "us", or "our"). These Terms of Use govern your Account (as defined herein) and your use of web-based service available through the kakush.com website and mobile applications, and APIs and other interfaces made available by KaKush (collectively, the "Site"). If you are a business or other entity, the individual entering into these Terms of Use on your behalf hereby represents that he/she is an employee or agent of such business or other entity and has authority to enter into these Terms of Use on the company's behalf.

NOTICE: PLEASE READ THE FOLLOWING TERMS OF USE BEFORE PROCEEDING. BY CLICKING "I ACCEPT" DURING ACCOUNT REGISTRATION OR BY USING THE SITE OR THE SERVICES PROVIDED THROUGH THE SITE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THESE TERMS OF USE. IF YOU ACCESS OR USE THE SITE, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THESE TERMS OF USE AND AGREE TO BE BOUND BY THIS AGREEMENT.

IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU CANNOT REGISTER FOR AN ACCOUNT OR USE THE SITE.

These Terms of Use are entered into as of the earlier of the date You first click “I Accept” or first access or use the Services or Platform (the “Effective Date”).

1. Definitions.

Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in the United States.

2. Additional Terms.

We or our affiliates may require you to follow additional rules, guidelines, or terms and conditions (“Additional Terms”) in order to access and use various features of the Site, to participate in certain promotions available through the Site, or to receive other services offered from time to time ("Additional Services"). Before accessing or using the Additional Services, you will be required to agree any applicable Additional Terms. Any Additional Terms you agree to through the Site will become a part of these Terms of Use. If any Additional Terms differ from the terms of these Terms of Use, the Additional Terms will take precedent over the terms of these Terms of Use, but only with respect to the matters governed by the Additional Terms.

3. No Responsibility for Coaches, Groups, and Sponsors.

You acknowledge that you are solely responsible for your selection of any coach or other third party you choose to assist you with your training, exercise, or fitness (Your “Coach”) and for any advice, coaching, training, or other services you receive from that Coach (“Coaching Services”). You are solely responsible for your group (Your “Group”) which is a collection of accounts that may share information. For example your Group may share your latest session entry or participate in chats. You are also solely responsible for your selection of and relationship with your sponsor (your “Sponsor”), is any, and any payments or other benefits provided to you by your Sponsor (“Sponsor Benefits”). We are not responsible for any Coaching Services or Sponsor Benefits, whether or not the Coach or Sponsor uses the Site or Services to assist them in providing you with any Coaching Services or Sponsor Benefits. We have no control over, are not responsible for, and do not provide support or maintenance for, any Coach or Sponsor or and Coaching Services or Sponsor Benefits. Separate and apart from these Terms of Use, your access to and use of any Coaching Services or Sponsor Benefits may also be subject to any other agreement you have entered into (or enter into) with your Coach or Sponsor addition to this Agreement (a “Coaching Agreement” or “Sponsor Agreement,” respectively). Notwithstanding any Coaching or Sponsor Agreement, these Terms of Use will continue to apply to your use of the Site and all Services. Any Coaching or Sponsor Agreement will apply separately to any Coaching Services or Sponsor Benefits you receive from your Coach or Sponsor and are separate and independent from the Services you may receive from us under these Terms of Use.

4. Services.

Subject to your compliance with these Terms of Use, we will provide you with services through the Site for the Account type you select ("Services"), including storing, processing and analyzing exercise and fitness data, training plans, training logs, meal plans and any other content that you or a Coach (as defined below) uploads or enters into your Account (collectively, "Content") together with any Additional Services that may be offered to you from time to time. We reserve the right, at any time, to modify the Site or Services by making the modification available on the Site or by providing other notice to you. Any modification will be effective immediately upon posting on the Site or such other notice. You will be deemed to have agreed to such modification through your continued use of the Site or Services.

5. Features.

We designate various features that You are able to use on your account. Different subscriptions will enable the associated features from that subscription on your account.

6. Account Registration; Account Settings; Passwords.

Age Restrictions. You may not create an Account unless you are 13 years of age or older. If You are a parent or guardian of a child under 13, then You may create an Account and allow Your child to access that Account and the Services under Your direct supervision. You will be solely responsible for all access to and use of the Services and that Account by Your child. If You are 13 or older but younger than 18, then You may establish Your own Account only if Your parent or guardian accepts this Agreement on Your behalf. If you are a parent or guardian entering this Agreement for the benefit of a child age 13 or older but under 18, then You agree You will be solely responsible for all access to and use of the Services and that Account by Your child.

a. Your Account Information. By submitting a Registration form or creating a password on the Site, you represent to us that: (1) you meet any age restrictions for the Site, and (2) the information you have provided on your Registration ("Account Information") is true, accurate, current and complete. You will maintain and promptly update your Account Information using the functionality provided through the Site to keep it true, accurate, current and complete.

b. Passwords. You are responsible for maintaining the confidentiality of your password and you are not permitted to share or disclose your password to anyone else. You will be solely responsible for the activities of anyone accessing the Site using any password assigned to you, even if the individual is not, in fact authorized by you. If you have reason to believe that your password has been compromised or used without authorization, you must promptly change it, using the functionality provided on the applicable Site.

c. Passwords for Coached Athlete Accounts and Sponsored Accounts. If your Account is designated as a Coached Athlete Account, the Coach to whom your Account is linked will have access your Account, including the ability to set and reset your password and to view or modify the Content in your Account. If you have a Sponsored Account, the Sponsor of your Account may also have the ability to set and reset your password and view or modify the Content in your Account.

d. Permitted Uses. Use of Paid Athlete Accounts and Coached Athlete Accounts is limited to your own personal, noncommercial use only. If you have a Coach Account, you may use the Site as a tool to assist you in providing coaching or training services to individual users who have a Coached Athlete Account that is linked to your Account. For Sponsored Accounts, please refer to your Sponsor Agreement and any Additional Terms that may be presented to you during registration for your Sponsored Account.

7. Payment; Termination by You.

You are required to pay the fees for your Subscription to enable features in your Account for the term of the plan selected in your Registration prior to obtaining access to your Account. All fees will be payable in advance, unless otherwise specified in your Registration of on the Site. All plans automatically renew unless you terminate your Account within the time specified in your Registration or on the Site for your plan before your plan is scheduled to renew. You are free to terminate your Subscription Account at any time. KaKush will not provide any refund upon termination, but you will continue to have access to your Account after you have terminated your Subscription until the expiration of your plan's current term.

8. Term; Termination by KaKush.

a. Term. We will provide the Services to you for your particular Account commencing upon the payment and completion of the Registration for your Account for the term that you (or your Sponsor or Coach, if applicable) selects unless your Account is terminated before the end of the term as permitted in these Terms of Use.

b. Termination by Us. We reserve the right to disable your password and terminate your access to your Account regardless of the type of Account you have if (1) you fail to comply with these Terms of Use, including without limitation, failing to comply with the password restrictions or providing false Account Information, or (2) for no Subscription, for any reason or no reason. If we do so, we may also choose to delete your Account Information or remove Content you have posted or uploaded to the Site or your Account. We will not provide any refund if your Account is terminated under this Section.

c. Termination by You. If you notify us that you wish to terminate your Account, regardless of the type of Account you have, we will promptly take such action as is necessary to terminate your Account. Upon such termination, we may also choose to delete your Account Information or remove Content you have posted or uploaded to the Site or your Account. We will not provide any refund if your Account is terminated under this Section.

d. Other Termination or Modification. In addition to the termination rights above, we have the right to terminate the Services at any time or to modify or change the Services to eliminate any or all of the Services.

e. Suspension - General. Without limiting our right to terminate your Account, we may also immediately and indefinitely suspend your access to the Site, Services and Account, including, without limitation, all of your Content, with or without notice to you, upon any actual, threatened, or suspected breach of these Terms of Use or applicable law or upon any other conduct we deem to be inappropriate or detrimental to the Site, Services, us, or any other customer or user.

f. Suspension - Inactivity. If you have a Coach Account, we reserve the right to disable your password and suspend your access to your Account if you have had no fees payable on Your Account for a period of 60 days. If you notify us following any such termination, provided you are not then in breach of these Terms of Use, you may reactivate your Account by paying all applicable fees required in connection with initial activation of a Coach Account.

9. No Medical Advice.

THE CONTENT WE PROVIDE THROUGH THE SITE, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY US OR BY OTHER USERS OR THIRD PARTIES IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF: (A) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS; (B) A VISIT, CALL OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS; OR (C) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. OUR CONTENT DOES NOT CONSTITUTE MEDICAL ADVICE. SHOULD YOU HAVE ANY HEALTHCARE RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON THIS SITE, AND YOU SHOULD NOT USE OUR CONTENT FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF OUR CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND US. KAKUSH IS NOT A HEALTHCARE PROVIDER OR BUSINESS ASSOCIATE OF A HEALTHCARE PROVIDER AND IS NOT SUBJECT TO THE PRIVACY RULE OF THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA).

10. Privacy Policy Consent.

a. By agreeing to the Terms of Use, you also agree to comply with the terms of our online privacy policy posted on the Site (our “Privacy Policy”), which is incorporated into these Terms of Use. Before using the Site or Services or any Account, please carefully review our Privacy Policy. All personal data you provide to us as a result of your use of the Site, Services, or any Account will be handled in accordance with these Terms of Use and our Privacy Policy. We reserve the right to monitor your communications with us whether by mail, voice, fax, e-mail or any other form of transmission for the purposes of quality control, security and other business needs.

b. Without limiting any rights under the Privacy Policy, we will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information (data or information that does not identify an entity or natural person as the source thereof) resulting from your access to the Site and your use and operation of the Services. To the extent any such data or information is collected or generated by us, the data and information will be solely owned by us, and we may be use it for any lawful business purpose without a duty of accounting to you, provided that the data and information is used only in an aggregated form, without directly identifying you, any user or customer, or any other entity or natural person as the source thereof.

11. Content.

a. User Content. The Site may allow you to post, upload, transmit, or otherwise make available and provide ("post") Content on the Site, including, without limitation, text, images, illustrations, graphics, workout and other data, audio, video or audio-video clips, or other materials. The Content you and other users post is referred to as "User Content" in these Terms of Use. The User Content that you post is referred to as "your Content" in these Terms of Use.

b. Prohibited Content. You may not post Content on or through the Site that:

a. is patently offensive and/or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;

b. harasses or advocates harassment of another person;

c. exploits people in a sexual or violent manner;

d. contains nudity, violence, or offensive subject matter;

e. provides any telephone numbers, street addresses, last names or email addresses of anyone except yourself;

f. promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;

g. violates any intellectual property or other proprietary right of any third party, including Content that promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;

h. involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging or "spamming";

i. contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);

j. furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;

k. solicits passwords or personal identifying information for commercial or unlawful purposes from other members;

l. involves commercial activities and/or sales without our prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or

m. includes a photograph of another person that you have posted without that person's consent or, in the case of children under the age of thirteen (13), parental consent, or otherwise constitutes an invasion of an individual's privacy or infringement of publicity rights; or contains a virus or other harmful component.

c. Responsibility for User Content. You are responsible for all Content you post to your Account and the Site and for adjusting the Account settings that permit you to display your Content on the Site, where applicable. Posting Content via the Internet inherently poses the risk of unintended disclosure and access by third parties to your Content. We will make reasonable efforts to prevent your Content from disclosure beyond the settings you select, but we cannot guarantee these settings will prevent your Content from being viewed or accessed by unintended third parties and we will not be liable for such disclosures. We are not responsible for and do not control User Content, and, therefore, we do not guarantee the accuracy, integrity or quality of any User Content. You understand that by using pages of the Site on which users may post User Content, you may be exposed to User Content that you deem offensive, indecent or objectionable. Under no circumstances will we be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, settings viewing errors, or any loss or damage of any kind incurred as a result of the use of any User Content posted on or through the Site.

d. Rejection/Removal of Your Content. You acknowledge that we have no obligation to screen User Content, but that we have the right (but not the obligation) in our sole discretion to screen, edit, refuse, or remove any User Content (which includes your Content) or portion thereof, in our sole discretion, for any reason. Without limiting the foregoing, we have the right to remove from the Site any User Content that violates these Terms of Use or is otherwise objectionable in our sole discretion, or to restrict, suspend, or terminate your access to all or any part of the Site at any time, for any or no reason, with or without prior notice, and without liability.

e. Ownership of Your Content. We do not claim ownership rights in your Content. Subject to the non-exclusive license contained in the following paragraph, and the rights of Coaches and Sponsors, if applicable, you own and will retain any and all intellectual property rights that you may have in your Content.

f. License to Use Your Content. By posting your Content on or through the Site, you hereby grant us a non-exclusive, fully-paid, royalty-free, perpetual, irrevocable, worldwide license (including the right to sublicense) to use, copy, publicly perform, publicly display, distribute, and create derivative works based on your Content. You consent to our use and disclosure of your Content as set forth in these Terms of Use, including our Privacy Policy. You may contact us to request that your Content be removed from the Site. We cannot guarantee the complete deletion of your Content and copies thereof, especially on message boards, blogs or other community pages. Back-up or residual copies of any Content that we remove may remain on our servers after the Content has been removed from view, and we retain all rights granted in this paragraph to all such remaining copies.

g. If you have Coaches linked to your account, then the Sponsor linked with your Account has the right to access, view, modify, add, and delete your Content. By accepting a Coach for Your Account the rights you grant to us include the right to allow the Coach or Sponsor with whom your Account is linked a license to copy, modify, view, add and delete your Content.

h. Your Warranties Regarding Your Content. By posting your Content via the Site, you represent and warrant that (1) you own all right, title and interest in your Content, or otherwise have the right to grant the license set forth in preceding paragraph, and (2) the posting of your Content on or through the Site does not violate the intellectual property right, privacy rights, publicity rights, or any other rights of any third party.

12. Ownership of Site and Content.

a. User Content. The Site and Content we and others provide are protected under applicable intellectual property laws. In addition, the Content is a collective work under U.S. and international copyright laws and treaties, and while you retain ownership of your Content, we own the copyright in the selection, coordination, and arrangement of the Content on the Site.

b. Content License. We hereby grant you a personal, limited, revocable, non-sublicensable license to download and print copies of any portion of the Content of the Site to which you have properly gained access for your personal use (or if you are a Coach, only for use by individual users who have a Coached Athlete Account to which your Coach Account is currently linked). The foregoing license is subject to these Terms of Use and does not include the right to use any data mining, robots or similar automated means or methods to access any Content on the Site. This license is revocable by KaKush at any time without notice and with or without cause.

c. Content Restrictions. Unless you are expressly granted rights to do so by KaKush under a separate agreement from these Terms of Use, You may not and you may not permit others to copy, distribute, perform or display publicly, prepare derivative works based on, broadcast, exploit or use any part of the Content on the Site (except your Content) except as expressly provided in these Terms of Use without our prior written permission. Any use of the Site, including the Content of the Site (except your Content), other than as specifically authorized in these Terms of Use (or any such separate agreement with KaKush),is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. You will not remove, modify or obscure any copyright, trademark, or other proprietary notices from any Content (except your Content).

d. Software. Unless otherwise expressly stated in a license or other agreement separate from this Agreement that You may have entered into (or may enter into) with us relating to any software, code, or APIs available on or accessible through the Site or Services (collectively, “Software”) (each such license or other agreement, a “Software License Agreement”), we grant you a personal, limited, non-exclusive right and license to download, install, and execute the Software in accordance with any instructions we provide to you, solely for your own business purposes in connection with your access to and use of the Site and Services. Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), you are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any intellectual property rights therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Software without our prior written permission. Except as set forth in this Agreement, any Software License Agreement will control in the event of a conflict between the terms of this Agreement and that Software License Agreement.

e. Site Restrictions. You acknowledge that the Services, Site, Software, and all other databases, software, hardware and other technology used to provide the Services and operate the Site (collectively, our “Technology”) and their structure, organization, and underlying data, information and source code constitute our valuable trade secrets. You will not, and will not permit any third party to: (1) access or use the Technology, in whole or in part, except as expressly provided in these Terms of Use; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of tour rights to access or use the Technology, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Technology, or access thereto, available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) use the Technology for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; or (9) interfere in any manner with the operation or hosting of the Technology, or attempt to gain unauthorized access to the Technology.

13. Copyright Infringement.

a. Claims of Copyright Infringement. If you have reason to believe any part of the Content of the Site infringes the copyrights of others, please notify our Copyright Agent immediately using the contact information provided below. It is our policy to investigate any allegations of copyright infringement brought to our attention. We reserve the right in our sole discretion to immediately suspend and/or terminate access to any Site by any user who is alleged to have posted infringing materials or a link to infringing materials on the Site and to immediately remove or disable the allegedly infringing Content or link.

b. Notice of Claim of Copyright Infringement. If you are the copyright owner (or are authorized to act on behalf of the copyright owner), please notify our Copyright Agent immediately if you believe that (1) any Content displayed on the Site infringes your copyright or (2) any link posted on the Site links to materials that infringe your copyright. As soon as we receive your notice of claimed infringement, in the form described below, we will promptly remove or disable access to the materials that are claimed to be infringing (or the subject of infringing activity). Your notice must be in writing and must include the following:

a. a description of the copyrighted work you believe has been infringed (or if you believe multiple copyrighted works have been infringed, a representative list);

b. a description of the material you believe is infringing or the subject of infringing activity, together with enough information to permit us to locate the material on the applicable Site; enough information to permit us to contact you, such as, your name, address, telephone number and, if available, e-mail address;

c. a statement that you have a good faith belief that the allegedly infringing use of the material was not authorized by the owner of the exclusive right that is allegedly infringed (the "copyright owner"), an agent for the copyright owner, or by law;

d. a statement that all of the information you have provided is accurate; and

e. a statement, made under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the copyright owner.

c. Your Notice. Your notice must be signed (physically or electronically) and must be addressed as follows: KaKush LLC 5908 Gunbarrel Ave, APT E, Boulder, CO 80301

14. Trademarks.

a. Ownership of Trademarks. The trademarks and service marks used or displayed on the Site ("Trademarks") are registered and unregistered trademarks of KaKush and its licensors or affiliates. Your access to the Site does not constitute a license to use any Trademarks and you may not use any Trademarks displayed on the Site without the prior express written permission of KaKush or the trademark owner.

b. Trademark License for Subscriptions with Coach Feature. If you have a Coach Account, during the term of these Terms of Use, we grant you a limited, non-exclusive, non-sublicensable, personal license to use the Trademarks "KaKush,", "KaKush.com" "Powered by KaKush," and any logos or designs we provide containing the foregoing ("Licensed Marks") solely to promote your training and coaching services to actual and potential users of the Site. Your use of any Licensed Marks will be subject to any trademark usage instructions we may provide you from time to time. All of your use of the Licensed Marks inures to our benefit and you will acquire no rights in the Licensed Marks nor challenge or contest our rights in the Licensed Marks or any other Trademarks. This license will terminate immediately upon termination of your Coach Account for any reason. Upon termination, you will immediately cease using the Licensed Marks, destroy any materials containing the Licensed Marks and delete any references to the Licensed Marks on your website.

15. Your Feedback.

We welcome your comments, feedback, suggestions, and other communications regarding the Site and the information and services we make available through the Site (collectively, "Feedback"). The Feedback you provide to us through the Site will be and remain our exclusive property. Your submission of Feedback will constitute an assignment to us of all worldwide rights, title and interests in your Feedback, including all copyrights and other intellectual property rights in your Feedback. We will be entitled to reduce to practice, exploit, make, use, copy, disclose, display or perform publicly, distribute, improve and modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Feedback that you do not wish to assign to us.

16. Links to the Site and RSS Feeds.

We grant you permission to create hyperlinks to the home page of public pages within the Site, provided that the hyperlink accurately describes the content as it appears on the applicable page of the Site. Under no circumstances may you "frame" the Site or any of its Content or copy portions of the Site to a server, except as part of an Internet service provider's incidental caching of pages. When a page of the Site is accessed from a link (including RSS feeds) featured on your web site, each page within the Site must be displayed in full, without any accompanying frame, border, margin, design, branding, trademark, advertising, or promotional materials not originally displayed on the applicable page within the Site. If you wish to link to any Site other than as described herein, you must execute a separate agreement with KaKush.

17. Third Party Sites.

The Site may contain links to websites operated by other entities. If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. We make no warranty or representation regarding, and does not endorse, any linked websites or the information appearing thereon or any of the products or services described thereon.

18. Support.

a. We may provide you with support for your Account ("Support") via the following methods, which may include, without limitation: online self-help support center ; forums ; the Site; email; and voicemail.

b. We will use commercially reasonable efforts to respond to Support requests within 48 hours after the request is placed. Support is available from 9:00 a.m. to 5:00 p.m. Mountain Standard Time on Monday through Friday, excluding USA holidays, provided that we do not guaranty any level of Support and may change our Support practices at any time.

19. Warranties; Disclaimer.

a. Except in the case of Accounts without Subscriptions, we will use commercially reasonable efforts to provide you the Services relating to your Account during the term of your Account in accordance with our current description of Services applicable to your Account. Except in the case of Accounts without Subscriptions, we will re-perform the Services as necessary to correct the problem provided that you notify us in within thirty (30) days of the problem. The foregoing remedy will be your sole and exclusive remedy with respect to any failure of the Services meet the warranty set forth in these Terms of Use.

b. EXCEPT AS EXPRESSLY PROVIDED HEREIN, KAKUSH HEREBY EXPRESSLY DISCLAIMS, AND YOU DISCLAIM ANY RELIANCE ON, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, OUR CONTENT, AND ALL SOFTWARE, PRODUCTS OR SERVICES DESCRIBED ON OR AVAILABLE THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE ARE NOT RESPONSIBLE FOR ANY ACTION BY A COACH OR SPONSOR RELATING TO YOUR USE OF THE SITE. YOU WILL NOT ASSERT ANY CLAIMS THAT YOU MAY HAVE AGAINST A SPONSOR OR A COACH AGAINST KAKUSH.

c. KAKUSH MAKES NO WARRANTY: THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE WILL BE ACCURATE OR RELIABLE; THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KAKUSH OR THROUGH OR FROM THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF USE. WE DO NOT WARRANT THAT THE SITE, SERVERS, CONTENT ON THE SITE, E-MAIL SENT FROM US, OR PRODUCTS OR SERVICES AVAILABLE ON THE SITE, IF ANY, WILL BE FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES).

20. Limitation of Liability.

a. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS WE, ON BEHALF OF OURSELVES AND OUR EMPLOYEES, AGENTS, COACHES, SUPPLIERS, SPONSORS AND CONTRACTORS, EXCLUDE AND DISCLAIM LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF KAKUSH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES AND THE SITE, OR OTHERWISE RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE SERVICES OR THE SITE; (2) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES RESULTING FROM ANY GOODS, CONTENT, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (5) ANY OTHER MATTER RELATING TO THE SITE. YOU ASSUME TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS.

b. KAKUSH’s TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH These terms of use, the site AND all SERVICES provided under these terms of use, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO KaKush HEREUNDER IN THE 1 MONTH PRECEDING ANY SUCH initial occurrence of LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $10). You agree THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN these terms of use AND acknowledge THAT KaKush WOULD NOT ENTER INTO these terms of use WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

c. These Terms of Use give you specific legal rights and you may also have other rights which vary from country to country. Some jurisdictions do not allow the exclusion of implied warranties, or certain kinds of limitations or exclusions of liability, so the limitations and exclusions set out in these Terms of Use may not apply to you. Other jurisdictions allow limitations and exclusions subject to certain conditions. In such a case the limitations and exclusions set out in these Terms of Use will apply to the fullest extent permitted by the laws of such applicable jurisdictions. Your statutory rights as a consumer, if any, are not affected by these provisions, and we do not seek to exclude or limit liability for fraudulent misrepresentation.

d. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or the Terms of Use must be filed within 1 year after such claim or cause of action arose or be forever barred.

21. Indemnity.

You will indemnify and hold harmless KaKush, and its subsidiaries, affiliates, officers, agents or other partners, users, Coaches, Sponsors and employees, from and against any claim, liability, loss, expense or demand, including reasonable attorneys' fees, relating to or arising out of your Content, your use of any other Content, your use of or connection to the Site and Services (including any information, materials, products or services available through the Site or Services), your violation of these Terms of Use, or your violation of any applicable laws or any rights of another user or third party.

22. Compliance with Laws.

You agree to use the Site in compliance with all applicable laws. If you access the Site from outside the United States, you will comply with all local laws regarding your use of the Site.

23. Jurisdictional Issues.

These Terms of Use will be governed by and interpreted in accordance with the laws of the State of Colorado as such laws apply to contracts between Colorado residents performed entirely within Colorado. You hereby consent and submit to the exclusive jurisdiction and venue in the state and federal courts located in Denver, Colorado for any legal proceedings related to these Terms of Use.

24. Miscellaneous.

a. Notice. We may send you any notices via e-mail or regular mail to the address we have on file for you. We may provide notice to you by displaying the notice on the Site as described in these Terms of Service. You will provide any notices to KaKush solely as directed in these Terms of Use or in writing at the address set forth below.

b. Assignment. You may not assign, delegate or otherwise transfer your Account or your rights or obligations under these Terms of Use. KaKush will have the right, in its sole discretion, transfer or assign all or any part of its rights under these Terms of Use to any third party, and will have the right to delegate or use third party contractors to fulfill its duties and obligations under these Terms of Use.

c. Severability. If any clause or provision of these Terms of Use will be held by a court of competent jurisdiction to be invalid in whole or in part, then the remaining clauses and provisions, or portions thereof, will nevertheless be and remain in full force and effect, and the parties will promptly substitute for the invalid provision a valid and binding provision resembling the invalid provision as closely as possible in intent and economic effect.

d. Attorneys' fees. If any party hereto will bring any suit or action against another for relief, declaratory or otherwise, arising out of this agreement, the prevailing party will have and recover against the other party, in addition to all court costs and disbursements, such sum as the court may adjudge to be reasonable attorneys' fees.

e. Survival. Sections 1, 2, 6, 7, 8, 9, 18, 19, 20, 22 and 23 will survive any termination or expiration of the Terms of Use. In addition, any perpetual or irrevocable rights or licenses granted to KaKush will survive termination or expiration of these Terms of Use.

f. Waiver. Failure to insist upon strict compliance with any of the terms, covenants and conditions hereof will not be deemed a waiver of such terms, covenants and conditions, nor will any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. No waiver will be valid unless in writing and signed by an authorized officer of KaKush.

g. Entire Agreement. The Terms of Use, including our Online Privacy Policy and any Additional Terms, constitute the entire agreement between you and KaKush and govern your use of the Site, superseding any prior agreements between you and KaKush with regard to your use of the Site. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers under these Terms of Use must be in writing. Any waiver or failure to enforce any provision of these Terms of Use on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.