Terms of Use

TERMS AND CONDITIONS:

KILOGEAR, INC., grants you access to our websites, such as www.KILOGEAR.com, www.KILOGEARCUT.com, www.KILOGEARFITNESS.com, and its various social media accounts, its subdomains (collectively known as the "sites") and use of our applications (collectively known as the "apps"), on your acceptance of the terms and conditions and notices contained in these terms and conditions (collectively known as "terms of use" and together with our cookie policy, privacy policy, terms of sale and any other documents referred herein). Content can be defined, but is not limited to images, emails, messages, any text, software, source code, apps, specifications, technical packages, audio and video files, articles, blogs, trademarks, logos, designs, structure, framework, selection, coordination, expression, vibe, arrangement, style and feel and any other information or content available through our sites and services.

These terms and conditions apply to all visits and use of the site(s) and services, as well as to the content, information, recommendations, products and/or services provided to you on or through the site, social platforms, physical marketing products or KILOGEAR Inc., products.

By accessing and using the site(s), social accounts or using KILOGEAR Inc. products, you signify your consent to these terms and conditions in their entirety in addition to any other law or regulation that applies to all KILOGEAR Inc. messaging digitally, on the Internet, physically or through product use. If you do not agree to these terms and conditions in their entirety please leave the site.

USE OF KILOGEAR INC. WEBSITES AND SOCIAL ACCOUNTS:

Welcome to www.KILOGEAR.com, www.KILOGEAR CUT.com, www.KILOGEARFITNESS.com and any other KILOGEAR Inc., website or application (collectively known as the “sites, services and apps”.)!  We provide services to you on our websites and applications. By using our sites, services and apps, you represent that you are more than 18 years of age or are visiting the site(s) with the permission and supervision of a parent or guardian.  For residents of Korea or anyone accessing the site(s) from Korea, you must be 19 years of age or older.  You are subject to the terms set forth herein. All content featured or displayed on the site, including, but not limited to, logos, icons, trademarks, text, graphics, photographs, images, moving images, sound, illustrations and software (“Content”), including “Submissions” (see section defining Submissions) contained on our Sites is owned by KILOGEAR Inc., its ambassador companies, its licensors and/or its content provider, as well as are our copyrighted property or the copyrighted property of our licensors or licensees. All trademarks, service marks, trade names and trade dress are proprietary to us and/or our licensors or licensees. We may change the sites or delete content or features at any time, in any way, for any or no reason.  All elements of the site including, but not limited to, the general design and the content, can be protected by copyright, moral rights, database rights, trademark and other laws relating to intellectual property rights. No portion or element of the Site or its Content may be copied or retransmitted via any means. The Site, its Content and all related rights shall remain the exclusive property of KILOGEAR Inc., its ambassador companies or its licensors unless otherwise expressly agreed. All such rights are reserved.

KILOGEAR Inc. hereby grants you a limited, revocable, non-exclusive license to access and use the various KILOGEAR Inc. websites on your computer or mobile device. Except as permitted in this paragraph, you may not reproduce, modify, display or otherwise make commercial use of any content from the  KILOGEAR Inc. websites unless expressly permitted by KILOGEAR Inc.  We reserve the right to refuse service to any individual at its sole discretion and without limitation if it believes that a user’s conduct violates applicable laws or is otherwise harmful to KILOGEAR Inc.

These terms of Use were updated as of October 18, 2018.

CONTENT ON THE SITE:

In the event that we offer downloads of software on a site and you download such software, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the "software") are licensed to you by us or third-party licensors for your personal, noncommercial home use only. We do not transfer title to the software to you. You may not distribute or otherwise exploit the software or decompile, reverse engineer, disassemble or otherwise reduce the software to a human-readable form.

When you use any of our services, you are subject to the policies, terms, and conditions applicable to that service. We reserve the right to change any of the information on www.KILOGEAR.com, www.KILOGEAR CUT.com, www.KILOGEARFITNESS.com and these terms and conditions at any time. By accessing or otherwise using any of the KILOGEAR, Inc. mobile applications you are indicating your agreement to the terms and conditions contained herein. Please read them carefully.

We may temporarily suspend or permanently close and refuse any and all current and future, access to or use of the sites and apps. You agree that you will not resell for commercial use our products purchased through the use of our sites. You also agree that you cannot resell or make commercial use of our site(s), apps or content therein. You are not allowed to license, publish, alter, display, distribute, transmit, perform, reproduce, create derivative works of, transfer, or sell any of our content. You may not collect or use any product information, to include descriptions, photographs, videos, or descriptions. You may not use any data mining, widgets, robots, or similar data gathering and extraction tools and methods from our sites and apps.  You may not access or attempt to access any of our systems or servers on which the sites and apps are hosted. You may not alter or modify the sites and apps in any way.  You may not use, modify, include or frame any KILOGEAR Inc. trademark, logo or other proprietary information (including the images found at the sites and the apps, the content of any text or the layout/design of any page or form contained on a page) without our express written consent; or use any meta tags or any other “hidden text” utilizing a our names, trademarks, or product names without our express written consent.

Any and all unauthorized use of the sites and apps will terminate the permission or license granted by these terms of use.  This will result in you being barred from use of the sites, services and apps. You may also violate applicable laws including copyright laws, patent and trademark laws (including trade dress), and communications regulations and statutes and be subject to the enforcement of those laws.

SUBMISSIONS:

In these terms of use, we use the word "submissions" to mean text, messages, ideas, concepts, pitches, suggestions, stories, artwork, photographs, drawings, videos, audiovisual works, musical compositions (including lyrics), sound recordings, characterizations, your and/or other persons' names, likenesses, voices, usernames, profiles, actions, appearances, performances and/or other biographical information or material, and/or other similar materials that you submit, post, upload, embed, display, communicate or otherwise distribute (collectively, "Distribute") on or through a Site.

There are two types of submissions: Solicited Submissions and Unsolicited Submissions. "Solicited Submissions" means those Submissions (a) that we expressly request or enable you to provide to us via any feature or activity on a Site for our review or display and possible specifically-defined consideration or compensation (collectively, "Consideration") (such as prizes or other value in games, sweepstakes, contests and promotions); and (b) that you Distribute on or through any Site for which you do not seek Consideration (such as in our Forums (as defined below in Section 6, entitled "FORUMS AND COMMUNICATION")). "Unsolicited Submissions" are any and all Submissions that do not fall within subparagraphs (a) or (b) of this paragraph.

Our company policy does not allow us to accept or consider Unsolicited Submissions so please do not Distribute Unsolicited Submissions on or through any Sites. We want to avoid the possibility of future misunderstandings when projects developed by us or under our direction might seem to others to be similar to their own creative work. We therefore ask that you not Distribute any Unsolicited Submission. In any event, you agree that any Submissions you make is not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of any review, compensation or consideration of any type (other than any stated Consideration).

Except as expressly stated in these terms of use, the provisions of these terms of use apply equally to Unsolicited Submissions and Solicited Submissions. Accordingly, we, our licensees, distributors, agents, representatives and other authorized users shall be entitled to exploit and disclose all Submissions, and we shall not be liable to you or to any person claiming through you for any exploitation or disclosure of any Submission.

LICENSES AND REPRESENTATIONS:

You hereby grant us and our licensees, distributors, agents, representatives and other authorized users, a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify (including removing lyrics and music from any Submission or substituting the lyrics and music in any Submission with music and lyrics selected by us), create derivative works based upon, perform and otherwise exploit such Submissions, in whole or in part, in all media formats and channels now known or hereafter devised (including on our Sites and third party web sites) for any and all purposes including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the "Submissions License").

By communicating a Submission, you represent and warrant that the Submission and your communication thereof conform to the Rules of Conduct (set forth below in Section labeled "RULES OF CONDUCT")) and other requirements of these terms of use and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize us to exploit, such Submission in all manners contemplated by these terms of use (including the Submissions License). These terms of use (including the Submissions License) do not limit any past or future grant of rights, consents, agreements, assignments and waivers you may have made or make with respect to Submissions.

To the extent that any Submissions you Distribute on or through the Sites contain original songs or recordings, you hereby represent that you are a member of ASCAP, BMI, SESAC or any other applicable performing rights society and that all musical compositions (including lyrics) and sound recordings contained in such Submissions are available for licensing to us (and our licensees, distributors, agents, representatives and other authorized users) directly from such societies. Notwithstanding the foregoing, regardless of whether you are a member of any performing rights society, you grant the Submissions License with respect to each and every musical composition (including lyrics) and sound recordings contained in such Submissions.

To the extent that we solicit Submissions through features or activities on or through Sites (including games, sweepstakes, contests, promotions and Public Forums (defined below in Section labeled "PUBLIC FORUMS AND COMMUNICATION")) that require the use of our copyrighted works (in whole or in part), we hereby grant you a non-exclusive license to create a derivative work using our copyrighted works (in whole or in part) as required (but only as required, and only for the purpose of creating your Submissions); provided however, that such license shall be conditioned upon your assignment of all rights in the work you create to us. If such rights are not assigned to us, your license to create derivative works using our copyrighted works (in whole or in part) shall be null and void. You agree to the foregoing grant of rights, consents, agreements and assignments whether or not your Submissions are used by us.

You hereby appoint us as your agent with full power to enter into and execute any document and/or do any act we may consider appropriate to confirm the grant of rights, consents, agreements, assignments and waivers set forth in these terms of use.

To the extent any "moral rights," "ancillary rights," or similar rights in or to the Submissions exist and are not exclusively owned by us, you agree not to enforce any such rights as to us or our licensees, distributors, agents, representatives and other authorized users, and you shall procure the same agreement not to enforce from any others who may possess such rights.

Without limiting the scope of the Submissions License or any future grant of rights, consents, agreements, assignments, and waivers you may make with respect to Submissions, you hereby ratify any prior grant of rights, consents, agreements, assignments and waivers made by you with respect to Submissions submitted by you to us.

ACCOUNTS:

Some services on the Sites permit or require you to create an account to participate or to secure additional benefits. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes (the "Registration Data"). You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person's username, password or other account information, or another person's name, likeness, voice, image or photograph. You also agree to promptly notify us at customercare@kilogear.com. of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to any Site.

We may suspend or terminate your account and your ability to use any Site or portion thereof for failure to comply with these terms of use or any special terms related to a particular service, for infringing copyright, or for any other reason whatsoever.

PUBLIC FORUMS AND COMMUNICATION:

"Forum" means an area, site or feature offered as part of any Site that offers the opportunity for users to Distribute Submissions for viewing by one or more Site users, including a chat area, message board, instant messaging, mobile messaging, social community environment, profile page, conversation page, blog, e-mail function (including electronic greeting cards and send-a-friend e-mails).

You acknowledge that Forums and features offered therein are for public and not private communications, and you have no expectation of privacy with regard to any Submission to a public Forum. We cannot guarantee the security of any information you disclose through any of these media; you make such disclosures at your own risk.

You are and shall remain solely responsible for the Submissions you Distribute on or through any Site under your username or otherwise by you in any Forum and for the consequences of submitting and posting same. We have no duty to monitor any Forum.

Also, you should be skeptical about information provided by others, and you acknowledge that the use of any Submission posted in any Forum is at your own risk. For example, we are not responsible for, and we do not endorse, the opinions, advice or recommendations posted or sent by users in any Forum and we specifically disclaim any and all liability in connection therewith.

We owe you no obligation, and therefore may refuse to post, deliver, remove, modify or otherwise use or take any action with respect to Submissions you Distribute.

RULES OF CONDUCT:

The following Rules of Conduct apply to the Sites. By using the Sites, you agree that you will not Distribute any Submission that: (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) is bigoted, hateful, or racially or otherwise offensive; (c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (d) otherwise harms or can reasonably be expected to harm any person or entity; (e) is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including a Submission that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, suicide, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity; (f) infringes or violates any right of a third party including: (1) copyright, patent, trademark, trade secret or other proprietary or contractual rights; (2) right of privacy (specifically, you must not distribute another person's personal information of any kind without their express permission) or publicity; or (3) any confidentiality obligation; (g) is commercial, business-related or advertises or offers to sell any products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations); (h) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Sites or any connected network, or otherwise interferes with any person or entity's use or enjoyment of the Sites; (i) does not generally pertain to the designated topic or theme of the relevant Forum to which it is submitted; (j) violates any specific restrictions applicable to a Forum, including its age restrictions and procedures; or (k) is antisocial, disruptive, or destructive, including "flaming," "spamming," "flooding," "trolling," and "grieving" as those terms are commonly understood and used on the Internet.

We cannot and do not assure that other users are or will be complying with the foregoing Rules of Conduct or any other provisions of these terms of use, and, as between you and us, you hereby assume all risk of harm or injury resulting from any such lack of compliance.

COOPERATION AND REMOVAL OF SUBMISSIONS:

We reserve the right, but disclaim any obligation or responsibility, to (a) refuse to post or communicate or remove any Submission from any Site that violates these terms of use (including the Rules of Conduct) and (b) identify any user to third parties, and/or disclose to third parties any Submission or personally identifiable information, when we believe in good faith that such identification or disclosure will either (i) facilitate compliance with laws, including, for example, compliance with a court order or subpoena, or (ii) help to enforce these terms of use (including the Rules of Conduct) and/or our contest, sweepstakes, promotions, and game rules, and/or protect the safety or security of any person or property, including any Site. Moreover, we retain all rights to remove Submissions at any time for any reason or no reason whatsoever.

CONTENT ACCESSIBLE VIA LINKS FROM SITES AND SEARCH RESULTS:

You should be aware that when you are on a Site, there are links to other sites that take you outside of our service to sites that are beyond our control, such as banner advertisements and links from advertisers, sponsors and content partners that may use our logo(s) as part of a co-branding relationship. You acknowledge that when you click on any of the aforementioned links, the sites you are taken to are not controlled by us; different terms of use and privacy policy may apply, and we are not responsible for such sites. We do not endorse and cannot ensure that you will be satisfied with any products or services that you purchase from a third-party site that links to or from any Site or third-party Content contained on our sites. We strongly encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any third parties.

Nor can we be held responsible for the accuracy, relevance, legality or decency of material contained on sites retrieved in searches and/or listed in search results or identified on search results pages.

COPYRIGHT & TRADEMARKS:

The content, sites, services and apps, are the sole property of KILOGEAR, Inc. and  its ambassador companies or its licensors as appropriate and are protected by patent, copyright, trademark and other intellectual property laws and may not be used except in accordance with these terms of use.  All trademarks, service marks, trade names, logos and trade dress, whether registered or unregistered (collectively the "marks") that appear on the Sites and Apps are proprietary to KILOGEAR Inc. You may not display, modify, frame or reproduce the marks other than with the prior written consent of KILOGEAR, Inc, and you may not remove or otherwise modify any trademark notices from any content. The marks are protected by trademark, trade dress, copyright, and various other intellectual property rights and unfair competition laws.  All page headers, custom graphics, button icons, and scripts are trademarks, service marks, trade names and/or trade dress of KILOGEAR, Inc. or their respective owners, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of KILOGEAR, Inc

Except as may be otherwise indicated in specific documents within the Site, you are authorized to view, play, print and download Content found on the Site for personal, informational, and non-commercial purposes only. You may not modify any of the materials and you may not copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any Content. You may not re-use any Content without first obtaining the consent of KILOGEAR CUT. For purposes of these terms, the use of any such Content on any other website or networked computer environment is prohibited. You may not remove any copyright, trademark or other proprietary notices from Content found on the Site.  We grant you no other privileges or rights in the content to you, and you must keep intact all patent, copyright, trademark and other proprietary notices on the Content. Any Content owned by KILOGEAR Inc., licensors may be subject to additional restrictions. Except as expressly provided in these Terms of Use, no part of the Apps, Sites and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way to any other computer, server, Web site, smart phone, tablet or other medium for publication or distribution or for any commercial enterprise, without our express prior written consent.

For whatever reason, if you print, copy or download any content of the site(s), services and apps, in breach of these terms of use, your right to use the site(s), services and apps will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. You may print one copy, and may download extracts of any page(s) from the sites for your personal non-commercial purposes. You must not modify any paper or digital copies or any materials you have printed or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text. You must acknowledge the status (and that of any identified contributors) as the authors of this material. 

We have adopted and implemented a policy that provides for the termination, in appropriate circumstances as determined by us in our sole discretion, of users who are infringers of copyright.

Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement must be sent to our Designated Agent.

Notification must be submitted to the following Designated Agent: 46 - E Peninsula Center Drive, #182, Rolling Hills Estates, CA 90274, customercare@kilogear.com.

At our discretion, we may terminate service or access to the site(s), services and apps for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Sites or Apps, please provide us with the information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. §512 ("DMCA").

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 and/or trademark owner, its agent, or the law.

A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

TESTIMONIALS:

Not all testimonials contained in or made available through the Sites have been prepared by us (including, but not limited to, information contained on message boards, in forums, text files, chats, etc.). As a result, we have not checked to determine whether or not a specific endorser's experience is what an average or typical consumer may expect to achieve. Not all consumers may achieve the same results.

MISUSE OF THE SITE:

You are prohibited from using the Site to post or transmit any User Generated Content (as defined below) which infringes or may infringe third party intellectual property rights or which is threatening, false, misleading, inflammatory, defamatory, invasive of privacy, obscene, pornographic, abusive, discriminating, illegal or which could constitute or encourage conduct that would be considered a criminal offense, violate the rights of any party or which may otherwise give rise to civil liability or violate any law. KILOGEAR Inc., may deny you access to the Site at any time in its sole discretion and which shall include situations where Reebok believes that your use of the Site is in breach of any of these Terms and Conditions and/or applicable laws. You are also prohibited from using the Site to advertise or perform any commercial solicitation.

Please note that some jurisdictions may not allow the exclusion of certain damages under mandatory law, so some of the above exclusions and limitations may not apply to you.

USER REVIEWS, PHOTOS & COMMENTS:

Any information you share in public areas, such as message boards or feedback sections, becomes public. Our Policy does not apply to any information you choose to make public. Please be careful about what you disclose and do not post any personal information that you expect to keep private. If you post information about yourself or others, or communicate with others using our Website, please note that we cannot control who reads your postings or what they do with the information you provide. We encourage you to use caution in posting personal information to the Website.

Anything posted or otherwise submitted to KILOGEAR Inc., whether on the www.KILOGEAR.com, www.KILOGEARCUT.com, www.KILOGEARFITNESS.com or other KILOGEAR, Inc. websites, through a mobile application, blog or via any form of social media (including by submitting an image to your social media using #kilogear, #goKILOGEAR, #kilogearcut, #kilogearnation, #wearableworkout, #kilogearfitness, or any other KILOGEAR based branded hashtag), will be treated as public and nonproprietary. By submitting photographs, comments or other materials to KILOGEAR Inc., you grant us a royalty-free, worldwide, perpetual, irrevocable and transferable right to use, copy, distribute, publish and modify such submissions. All such submissions shall automatically become our sole and exclusive property. In addition, when you post photographs, reviews or comments to any of the KILOGEAR Inc., or on any of our social media networks, you also grant us the right to use the name that you submit, if any, in connection with that submission. You further represent and warrant that you own or otherwise control all rights to any content submitted to the site(s), services and apps.

If you have purchased any products or services through your account using the site(s), services and apps, you may be offered to create an account with KILOGEAR, Inc. You are solely responsible for maintaining the security and confidentiality of your account and your account password. You are responsible for restricting access to your computer and your account.  You are responsible for keeping your email address listed on your account current. You are solely responsible and liable for all activities, including, without limitation, all purchases of products and services through the use of the site(s), services and apps that occur under your account or your account password.

You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security by contacting customercare@KILOGEAR.com.  We have the right to disable any account or password at any time, for any reason. 

You also acknowledge and agree that we may, to the extent permitted by applicable law, access, preserve, and disclose your account information, all Submissions (as defined below), all communications to and from you, all information relating to your use of the site(s), services, and apps, and all information relating to the use of the site(s), services and apps under your account or account password if we are required to do so by law or legal process or if we determine, at our sole discretion, that such action is necessary to protect the rights of KILOGEAR, Inc. third parties, and other users of the site(s), services and apps or for purposes of responding to your request for customer service. 

All products sold from the site(s), services and apps are governed by any terms of sale that may be posted on the site(s), services and apps. Please refer to our terms of sale to understand product warranties, our return or exchange policy, and shipping terms. By ordering and/or accepting delivery of the products, you agree to be bound by these terms of sale. The terms of sale are subject to change without prior notice at any time, at our sole discretion.  Review the terms of sale every time you make a purchase. 

LEGAL USE AND WEAR OF KILOGEAR PRODUCTS:

The use of any KILOGEAR Inc., products, equipment and gear in a manner other than its intended use is not recommended and may result in serious injury.

KILOGEAR Inc. assumes no liability or responsibility for using and wearing KILOGEAR Inc. products. KILOGEAR Inc., will not be liable for any direct, special, incidental, indirect, or consequential damages that result from the use of or the inability to use, any content on our website, social sites or the performance of KILOGEAR Inc. products purchased through the website or through other users of the website, partners or other businesses. You assume total responsibility for your use of the website, social sites, linked sites and or the sole use of KILOGEAR Inc. products.  If KILOGEAR Inc. is found to be liable to you for any damage or loss, which arises out of or is in any way connected with your use of the website, or any content, you agree that KILOGEAR Inc. liability shall in no event exceed $500. If applicable law may not allow the $500 limitation or the exclusion of liability or incidental or consequential damages, the above limitation or exclusion may not apply.

Consult your physician, therapists and trainers before using your weighted gear.  Warning use of KILOGEAR products by persons with heart or other medical problems may cause serious personal injury.  Immediately cease exercise if you feel dizzy, faint, or short of breath.

CALIFORNIA PROPOSITION 65 WARNING:

Products may contain chemicals known to the State of California to cause cancer and/or birth defects or other reproductive harm. (For questions about Prop 65: http://oehha.ca.gov/prop65/p65faq.html.) Contact KILOGEAR Inc:  customercare@KILOGEAR.com.

INDEMNIFICATION:

By using our products, site(s), services and apps, you agree to defend, indemnify and hold harmless KILOGEAR, Inc., its affiliates and their respective directors, officers, employees and agents against any losses, liabilities, claims, expenses (including attorney’s fees) as a result of your Submission or your access to or use of the Sites and Apps or your breach or alleged breach of these Terms of Use.  You equally hold us harmless if you violate of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right.  You will hold us harmless for any violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or any misrepresentation made by you. This means that you will be responsible for any loss of damage we suffer as a result of your breach of these Terms of Use.  

THIRD PARTY WEBSITES AND LINKS:

Our site(s), services and apps may contain links to other websites and other resources operated by third parties. Such links are provided solely as a convenience to you. We do not control these websites, and are not responsible for the content, products, services or information offered by any third parties. Including these links do not imply any endorsement of any website or the content, products or services offered, advertised, endorsed or promoted by any third party, or of any company or person. By visiting these websites and links, you do so at your own risk, and you may be subject to the terms and conditions and the privacy policies imposed by such third parties. We may allow you to link to our site as long as you do this legally and dos not damage our reputation or take advantage of us or any of our subsidiaries or partners.  You may not establish a link or connection to any website you do not own. We reserve the right to withdraw linking permission without notice and for any reason.  The website you link from must comply with our terms of use.

HACKING, VIRUSES AND OTHER MALEFICENT ACTIONS:

You may not misuse our site(s), services or apps by introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You may not attempt to gain unauthorized access to our site(s), services or apps, or the servers on which our site is stored or any server, computer or database connected to our site(s), services and apps. You must not attack our platforms via a denial or service attack or distributed denial or service attack. We will report any such breach to law enforcements and we will work with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our platforms and services will cease immediately. In addition, we will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our Sites or to your downloading of any material posted on it, or on any website linked to it.

LIABILITY LIMITATIONS

KILOGEAR, INC, AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFLUENCERS, AMBASSADORS, CONSULTANTS, SHAREHOLDERS, SUPPLIERS, LICENSORS AND THIRD PARTY PARTNERS WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, ISOLATED, INCIDENTAL, EXEMPLARY, MULTIPLIED OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR REVENUES, FAILURE TO REALIZE EXPECTED SAVINGS, OR ANY DAMAGES, WHETHER OR NOT SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY, INCLUDING, WITHOUT LIMITATION, ARISING OUT OF OR IN CONNECTION WITH ANY LOSS OR OTHER DAMAGES IN CONNECTION WITH ANY UNAVAILABILITY OR NONPERFORMANCE OF THE SITE(S), SERVICES, APPS, ERRORS, OMISSIONS, VIRUSES AND MALICIOUS CODE, UNLESS SUCH LOSS OR DAMAGES ARE CAUSED DIRECTLY BY KILOGEAR, INC. FRAUD, RECKLESSNESS, GROSS NEGLIGENCE OR NEGLIGENCE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

FOR NEW JERSEY RESIDENTS OR OTHER PERSONS ACCESSING THIS SITE(S), SERVICES AND APPS FROM NEW JERSEY: You agree that all disputes arising from your account, your use of the site(s), services and apps, and your Submissions and any Personal Rights contained therein shall be decided solely by an arbitrator, pursuant to the Consumer Arbitration Rules of the American Arbitration Association. By agreeing to arbitration, You understand and agree that You are waiving Your rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle any disputes. Furthermore, YOU AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL in any dispute with KILOGEAR, Inc., its subsidiaries and/or affiliates.

BY ACCESSING THE OUR SITE(S) SERVICES AND APPS, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "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."

FOR NEW ZEALAND RESIDENTS OR OTHER PERSONS ACCESSING THIS SITE FROM NEW ZEALAND: WE UNDERSTAND THAT, IN SOME JURISDICTIONS WARRANTIES, DISCLAIMERS AND CONDITIONS MAY APPLY THAT CANNOT BE LEGALLY EXCLUDED. ACCORDINGLY, IN RELATION TO GOODS AND SERVICES SUPPLIED BY KILOGEAR, INC, IN NEW ZEALAND, TO THE FULLEST EXTENT PERMITTED BY LAW, KILOGEAR, INC's LIABILITY FOR BREACH OF ANY CONSUMER GUARANTEE, WHICH CANNOT BE EXCLUDED, IS LIMITED AT THE OPTION OF KILOGEAR INC. TO:

    • IN THE CASE OF SERVICES SUPPLIED OR OFFERED BY KILOGEAR INC, WHICH ARE NOT OF A KIND ORDINARILY ACQUIRED FOR PERSONAL, DOMESTIC OR HOUSEHOLD USE OR CONSUMPTION (i) THE SUPPLY OF THE SERVICES AGAIN, OR (ii) THE PAYMENT OF THE COST OF HAVING SERVICES SUPPLIED AGAIN; AND
    • IN THE CASE OF GOODS SUPPLIED OR OFFERED BY KILOGEAR INC, WHICH ARE NOT OF A KIND ORDINARILY ACQUIRED FOR PERSONAL, DOMESTIC OR HOUSEHOLD USE OR CONSUMPTION:  THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, (THE REPAIR OF SUCH GOODS;  THE PAYMENT OF THE COST OF THE REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS, OR THE PAYMENT OF THE OCST OF HAVING THE GOODS REPAIRED.

You agree that any claim you may have arising out of or related to your relationship with KILOGEAR INC must be filed within one year after such claim arose; otherwise, your claim is permanently barred.

Arbitration offers a prompt and efficient way to resolve any dispute, controversy or other claim between us (whether arising under any legal or equitable theory, and given the broadest meaning enforceable under law, a “Dispute”). To the extent permitted by law, you and we agree that any and all Disputes will be resolved exclusively and finally using binding arbitration and will only be conducted on an individual basis and not in a class, consolidated, representative or similar action, except as provided below. The arbitrator must follow these Terms of Use and can award the same damages and relief as a court in an individual proceeding (including attorney’s fees). Acceptance of these Terms of Use constitutes a waiver of your right to litigate the Dispute in any court, the opportunity to be heard by a judge or jury, and the ability to proceed in a class, consolidated, representative or similar action, except as provided below.

Before you can begin any proceeding as to a Dispute, you must first give us an opportunity to resolve the Dispute by emailing us at customercare@KILOGEAR.com.  You must provide a notification that contains your name, your address, a written description of your claim in the Dispute, and a description of the specific relief you seek. If we do not resolve the Dispute within 90 days after receiving your notification, then you may pursue the Dispute in arbitration or, if you have opted out of arbitration as provided under “Right to Opt Out, in court.  You may choose to pursue a Dispute in court and not by arbitration if you opt out of arbitration within 30 days from the date that you first consent to these Terms of Use (the “Opt-Out Deadline”). To opt out of arbitration, simply email us at customercare@KILOGEAR.COM with your name, your address and your statement that you do not wish to resolve Disputes with us through arbitration.

If the Dispute is not resolved as provided under Pre-Arbitration Claim Resolution, either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. All issues shall be for the arbitrator to decide, including the scope of the arbitration provisions in these Terms of Use.

The AAA rules are available at www.adr.org or by calling 1-800-778-7879. These Terms of Use govern in the event of any conflict with the applicable arbitration rules.

Under no circumstances will class action procedures or rules apply to the arbitration, and the arbitrator may not consolidate more than one person’s Disputes or otherwise preside over any form of a class, consolidated, representative or similar action, unless both you and we specifically agree following initiation of the arbitration. The arbitration will be conducted in English, closed to the public and confidential. All related records shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award.

The U.S. Federal Arbitration Act (“FAA”) may govern the arbitrability of Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or conditions precedent to suit.

Nothing herein will preclude us from seeking provisional remedies in aid of arbitration (such as orders to stay a court action or compel arbitration), temporary restraining orders or similar relief, or redress for potential violations of our intellectual property rights, from any court of competent jurisdiction.

During arbitration, the arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement. Arbitration shall occur in Los Angeles, California. You waive any right to claim that such location is an inconvenient forum, and you agree not to sue us or bring arbitration in any other forum.

To minimize the costs and burdens of associated with arbitration, you and we agree that the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration. You and we further agree that the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties. You acknowledge and agree that, subject to your ability to pursue a Dispute in court by complying with the procedures above under “Right to Opt Out,” your acceptance of these Terms of Use constitutes your waiver of certain rights, including your right to litigate a Dispute in a public court before a judge or jury; your ability to participate in a class, consolidated, representative or similar action; your ability to conduct discovery and other procedures except under AAA rules; and your right to certain remedies, relief or other.

All litigation, court proceedings, arbitration proceedings, mediation proceedings, lawsuits, court hearings and other hearings or actions initiated in connection with the site(s) services, apps and/or the content will be completed exclusively in Los Angeles, California, United States of America. These Terms of Use and the relationship between you and KILOGEAR, INC., will be governed by the laws of the state of California and the federal laws of the United States of America.

OTHER APPLICATIONS:

These Terms supplement and incorporate the Google Play Terms of Service (“Google”) Terms and Conditions (located at https://play.google.com/intl/en-GB_ca/about/play-terms.html) including, without limitation, the Google Terms of Service provided therein (“Google Terms”); and (b) other KILOGEAR INC., policies (“KILOGEAR INC., Policies”), including the terms of use for KILOGEAR INC., websites. If any of the provisions of the Google Terms and Conditions or any applicable KILOGEAR INC., policies conflict with these Terms, these Terms will control, solely to the extent such terms apply to the App.

These Terms supplement and incorporate the Apple, Inc. (“Apple”) Terms and Conditions (located at www.apple.com/legal/itunes/us/terms.html#service) including, without limitation, the Licensed Application End User License Agreement provided therein (“Apple Terms”); and (b) other KILOGEAR INC.policies (“KILOGEAR INC., Policies”), including the terms of use for KILOGEAR INC., websites. If any of the provisions of the Apple Terms and Conditions or any applicable KILOGEAR, INC., policies conflict with these Terms, these Terms will control, solely to the extent such terms apply to the App.

These Terms supplement and incorporate the IntelVideo, Inc. (“IntelVideo”) Terms and Conditions (located at https://www.intelivideo.com/terms-of-service/) including, without limitation, the Licensed Application End User License Agreement provided therein (“IntelVideo Terms”); and (b) other KILOGEAR INC.policies (“KILOGEAR INC., Policies”), including the terms of use for KILOGEAR INC., websites. If any of the provisions of the IntelVideo Terms and Conditions or any applicable KILOGEAR, INC., policies conflict with these Terms, these Terms will control, solely to the extent such terms apply to the App.

These Terms supplement and incorporate the YouTube, Inc. (“YouTube”) Terms and Conditions (located at https://www.youtube.com/t/termsincluding, without limitation, the Licensed Application End User License Agreement provided therein (“YouTube Terms”); and (b) other KILOGEAR INC.policies (“KILOGEAR INC., Policies”), including the terms of use for KILOGEAR INC., websites. If any of the provisions of the YouTube Terms and Conditions or any applicable KILOGEAR, INC., policies conflict with these Terms, these Terms will control, solely to the extent such terms apply to the App.

You agree to provide truthful, accurate, current, and complete information about yourself as required for registration purposes and will maintain and update registration information and data to keep it accurate, current and complete. You have the option to use the "persistent log-in" feature, which allows you to remain logged-in while the App is closed in order to avoid having to reenter your log-in information each time you open the App. If you choose to exercise this option, you understand that anyone who gains access to your mobile device will be able to access, and use all of the functionality as found on the App, including the payment functions. By agreeing to this option you understand and agree that you are responsible for any charges or actions on your account. You also agree and acknowledge that your use of the Apps may involve data charges which are your responsibility as between you and your wireless service provider.

Subject to these Terms, we grant you a personal, non-exclusive, non-transferable, limited and revocable license to use the App for personal and/or non-commercial use only on any android, mobile, Apple iPhone, iPad or iPod Touch computer, or other supported device, (each a “Device”) owned or controlled by User as permitted by the Usage Rules contained in the Google Terms and Apple Terms and in accordance with these Terms (“User License”) or on any other device which may later support the use of the App as permitted by such device’s terms and conditions which shall be provided to User accordingly. Any use of the App in any other manner, including, without limitation, resale, transfer, modification or distribution of the App or text, pictures, music, barcodes, video, data, hyperlinks, displays and other content associated with the App (the “Content”) is prohibited. This Agreement and User License also governs any updates to, or supplements or replacements for, the App unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.

Some functionality of the Apps, including location-based services and functionality, may require the transmission of personal information provided by the User including User’s name and passwords, addresses, e-mail addresses, financial information (such as credit card numbers), GPS Location (“User Information”). If the User uses such Apps’ functionality, the User consents to the collection by KILOGEAR, INC., of User Information and to the transmission of User Information to KILOGAER and, its agents and/or service providers and authorizes KILOGEAR its agents and/or service providers to record, process and store such User Information as necessary for the App functionality and for purposes described in the KILOGEAR, INC., Privacy Policy.

The User is solely responsible for maintenance of the confidentiality and security of any User Information transmitted from or stored on a Device for purposes of the Apps. The User agrees to immediately notify KILOGEAR of any breach of security. We shall not be responsible for any losses arising out of the loss or theft of User Information transmitted from or stored on a Device or from unauthorized or fraudulent transactions associated with the Apps, unless such unauthorized or fraudulent transactions arises from KILOGEAR INC. breach of its obligations under the Privacy Policy, the Terms and the KILOGEAR INC., policies, its negligence or willful misconduct.

Personal information of User will be stored and protected by KILOGEAR INC., in the manner described in the privacy policy.

Apple, Google, YouTube, IntelVideos and each of their subsidiaries, are third party beneficiaries of these Terms. Upon User’s acceptance of these Terms, Google, Apple, YouTube, IntelVideos will have the right (and will be deemed to have accepted the right) to enforce these Terms against User as a third party beneficiary thereof.

PRICING AND INVENTORY:

Our sites and apps will provide you with pricing for the products that are carried online, potentially in stores and at events. The pricing shown to you through use of any app may only be good for purchases made online or through the app and may differ from other pricing. 

QUESTION AND COMMUNICATION:

If you have any questions or concerns, please email us at customercare@KILOGEAR.com.