KioskSimple Kiosk Software Logo
Terms of Use

  1. Acceptance of Terms.  This is a binding agreement between you and RedSwimmer, Inc., a California corporation ("us," "we," or "Company").  By using the website located at KioskSimple.com (the "Site") or any services provided in connection with the Site (the "Service") you agree to be bound by and to abide by these Terms of Use, as they may be amended by Company from time to time in its sole discretion.  Amended Terms of Use are effective upon being posted.  Company will post a notice on the Site any time these Terms of Use have been materially changed or otherwise updated.  It is your responsibility to review these Terms of Use periodically, and if at any time you find these Terms of Use unacceptable, you must immediately leave the Site and cease all use of the Service and the Site.  YOU AGREE THAT BY USING THE SITE AND/OR SERVICE YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND THAT YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT.  For convenience, you and the Company may be referred to collectively as the Parties.
  2. Privacy Policy.  Company respects your privacy and permits you to control the treatment of your personal information.  A complete statement of Company's current Privacy Policy may be found by clicking here.  Company's Privacy Policy is expressly incorporated into this Agreement by this reference.
  3. Site Access.  Company hereby grants you permission to use the Site or Service as set forth in this Terms of Use, provided that: (i) your use of the Site or Service as permitted is solely for your personal, noncommercial use; (ii) you will not copy or distribute any part of the Site in any medium without Company‚Äôs prior written authorization; (iii) you will not alter or modify any part of the Site other than as may be reasonably necessary to use the Site for its intended purpose; and (iv) you will otherwise comply with the terms and conditions of these Terms of Use.
  4. Compliance with Intellectual Property Laws.  When accessing the Site or using the Service, you agree to obey the law and to respect the intellectual property rights of others.  Your use of the Service and the Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property.  You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content (collectively, "Content") in violation of any third party's copyrights, trademarks, trade secret, or other intellectual property or proprietary rights (collectively, "Intellectual Property").  You agree to abide by laws regarding ownership and use of Intellectual Property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights.
  5. Termination.  Company reserves the right to terminate your use of the Service and/or the Site at any time.
  6. NO WARRANTIES.  COMPANY HEREBY DISCLAIMS ALL WARRANTIES.  COMPANY IS MAKING THE SITE AVAILABLE "AS IS" WITHOUT WARRANTY OF ANY KIND.  YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SITE OR THE SERVICE.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  COMPANY DOES NOT WARRANT THAT THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR ANY EMPLOYEE OR REPRESENTATIVE OF COMPANY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED IN THESE TERMS OF USE.
  7. LIMITED LIABILITY.  COMPANY'S LIABILITY TO YOU IS LIMITED.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY COMPANY.  THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISING OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION.
  8. Affiliated Sites.  Company has no control over, and no liability for any third party websites or materials.  Company works with a number of partners and affiliates whose Internet sites may be linked with the Site ("Affiliated Sites").  Because neither Company nor the Site has control over the content and performance of these Affiliated Sites, Company makes no guarantees about the accuracy, currency, content, or quality of the information provided by such sites, and Company assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites.  Similarly, from time to time in connection with your use of the Site, you may have access to content items (including, but not limited to, websites) that are owned by third parties.  You acknowledge and agree that Company makes no guarantees about, and assumes no responsibility for, the accuracy, currency, content, or quality of this third party content, and that, unless expressly provided otherwise, these Terms of Use shall govern your use of any and all third party content.
  9. Prohibited Uses.  Company imposes certain restrictions on your permissible use of the Site and the Service.  You are prohibited from violating or attempting to violate any security features of the Site or Service, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Service, the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site or Service, overloading, "flooding," "spamming," "mail bombing," or "crashing;" (d) using the Site or Service to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Service; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the code used by Company in providing the Site or Service.  Any violation of system or network security may subject you to civil and/or criminal liability.
  10. Indemnity.  You agree to indemnify, defend, and hold harmless Company, its affiliates, officers, directors, employees, consultants, agents, and representatives from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from your access to or use of the Site, your violation of these Terms of Use, or your infringement, or infringement by any other user of your account, of any Intellectual Property or other right of any person or entity.  Company will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.
  11. Company's Proprietary Rights.  All content of the Site, including the text, graphics, logos, icons, screens and configurations, software, trademarks, and trade dress (collectively, "Company Content"), is the property of Company or its licensors and is protected by U.S. and international intellectual property laws.  You do not acquire any ownership rights in or to Company Content by using, printing, downloading or copying any Company Content or using this Site.  Any use of Company Content or this Site other than for the express services provided is strictly prohibited.  For example, copying, reproducing, modifying, distributing, transmitting, replicating or public exhibition of Company Content is strictly prohibited.
  12. Limited License.  Company hereby grants you a personal, non-transferable and non-exclusive right and license to use the object code for the Site and Service on a single computer; provided, however that you shall not (and shall not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any rights in the software for the Site and Service.  This license does not include any resale or commercial use of this Site or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of this Site or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data-gathering and extraction tools.  This Site or any portion of it may not be reproduced, copied, sold, resold, used, visited or otherwise exploited for any commercial purpose without the express written consent of Company.
  13. Your Account.  You are responsible for maintaining the confidentiality of your account and password, if any, and for restricting access to your computer.  You hereby agree to accept responsibility for all activities that take place under your account or password.
  14. Governing Law and Venue.  These Terms of Use shall be construed and interpreted in accordance with the laws of the State of California. Any mediation or arbitration proceeding regarding this Agreement shall be venued in Fresno, California. Any court proceeding commenced regarding this Agreement shall be venued in the Superior Court of California, County of Fresno.
  15. Severability; Waiver.  If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms of Use to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect.  No waiver of any breach of any provision of these Terms of Use shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
  16. Trademarks; No License.  The Company's logo, trademarks and service marks are trademarks of Company (the "Company Marks").  Nothing contained on the Site should be understood as granting you a license to use any of the Company Marks, or the marks of any third party.  Without Company's prior written permission, you agree not to display or use in any manner the Company Marks or the marks of any third party on this Site.
  17. Alleged Violations.  Company reserves the right to terminate your use of the Site.  To ensure that Company provides a high quality experience for you and other users of the Site, you agree that Company or its representatives may access your account and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized uses of the Site.  Company does not intend to disclose the existence or occurrence of such an investigation unless required by law, but Company reserves the right to terminate your account or your access to the Site immediately, with or without notice to you, and without liability to you, if Company believes that you have violated any of the Terms of Use, furnished Company with false or misleading information, infringed upon the intellectual property rights of Company or any third party, or interfered with use of the Site by others.
  18. Attorneys' Fees.  In any litigation, arbitration or other proceeding arising out of these Terms of Use, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs to resolve the dispute and to enforce the final judgment.
  19. Modifications.  Company may, in its sole discretion and without prior notice, (a) revise these Terms of Use; (b) modify the Site and/or the Service; and (c) discontinue the Site and/or Service at any time.  Company shall post any revision to these Terms of Use to the Site, and the revision shall be effective immediately on such posting.  You agree to review these Terms of Use and other online policies posted on the Site periodically to be aware of any revisions.  You agree that, by continuing to use or access the Site following notice of any revision, you shall abide by any such revision.
  20. Obligation to Use Mediation/Arbitration. In the event of any dispute or disagreement regarding this Agreement, or the obligations of the Parties under this Agreement, or the interpretation of any portion of this Agreement, the Parties agree that such matters shall be determined by mediation and/or arbitration in accordance with the following procedure, and not by litigation.

    The Parties shall first attempt to agree upon a resolution.  If they are unable to do so, then any Party may give notice to the others of the Party's election to submit the matter to mediation. Within fifteen (15) days from the giving of that notice the Parties involved with the dispute shall submit to each other a written list of acceptable qualified attorney-mediators not affiliated with any Party.  Within five (5) days from the date the list is received, the Parties will rank the mediators in numerical order of preference and exchange the rankings.  If one or more names are on both lists, the highest ranking person will be designated as the mediator.  If no mediator has been selected under this procedure, the Parties agree jointly to request a State Judge of their joint choosing to supply within ten (10) business days a list of potential qualified attorney-mediators.  If they cannot agree upon a State Judge, or if the agreed upon Judge is unable or unwilling to supply the list, the Presiding Judge of the Fresno County Superior Court shall supply the list. Within five (5) business days from the date the list is received, the Parties will again rank the proposed mediators in numerical order of preference and will simultaneously exchange the list and will select as the mediator the individual receiving the highest combined ranking.  If the mediator is not available to serve, they will proceed to contact the mediator who was next highest in ranking until they are able to select a mediator.

    In consultation with the mediator selected, the Parties will promptly designate a mutually convenient time and place for the mediation.  Unless circumstances require otherwise, the time for mediation may not be later than forty five (45) days after selecting the mediator. If any Party has substantial need for information in the other Party's possession in order to prepare for the mediation, all Parties will attempt in good faith to agree to procedures to expeditiously exchange the information, with the mediator's help if required. In the mediation, each Party may be represented by counsel.  In addition, each Party may, with the mediator's permission, bring additional persons as needed to respond to questions, contribute information, and participate in the negotiations. The mediator is authorized to conduct both joint meetings and separate private caucuses with the Parties.  The mediation sessions will be private.  The mediator will keep confidential all information learned in private caucuses with any Party unless specifically authorized by the Party to disclose the information to the other Party.  The Parties commit to participate in the proceedings in good faith with the intention of resolving the matter if at all possible. The mediator's fees and expenses will be shared equally by the Parties involved in the dispute.  The mediator will be disqualified as a witness, consultant, expert, or counsel for any Party.  The entire mediation process shall be confidential, and no stenographic, visual, or audio record will be made.  All conduct, statements, promises, offers, views, and opinions, whether oral or written, made in the mediation's course by any Party, their agents, employees, representatives or other invitees and by the mediator shall be confidential and will, in addition and where appropriate, be deemed privileged.  The conduct, statements, promises, offers, views, and opinions will not be discoverable or admissible for any purpose, including impeachment, in any litigation or other proceeding involving the Parties. Evidence otherwise discoverable or admissible is not, however, excluded from discovery or admission as a result of its use in the mediation. The Parties agree to participate in the mediation procedure to its conclusion.  The mediation will be terminated by (1) the Parties' executing a settlement agreement; (2) a Party declaring in writing that the mediation process is terminated when at least one (1) full day's mediation session is concluded. Even if the mediation is terminated without resolution, the Parties agree not to terminate negotiations and not to commence arbitration, as provided below, until at least five (5) days after the termination of the mediation.

    If the Parties are not successful in resolving the matter through mediation, then the Parties agree that such dispute will be resolved by arbitration in accordance with the Rules of the American Arbitration Association ("AAA"), and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Any such arbitration proceedings shall take place in Fresno County, California, before an arbitrator selected under the Rules of the AAA and shall proceed under the expedited procedures (if available) of those rules.  The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, and may not, in any event, make any ruling, finding, or award that does not conform to the terms and conditions of this Agreement.  The use of the procedures specified in this section shall not be construed to affect adversely the rights of either party under the doctrines of laches, waiver or estoppel.

    Nothing in this section shall prevent either party from resorting to judicial proceedings, which, shall be subject to the exclusive jurisdiction and venue of the Superior Court of California for the County of Fresno (the parties hereby consent to the personal and exclusive jurisdiction of this court), if interim resort to a court is necessary to seek equitable relief in accordance with this Agreement, or if a Party finds it necessary to obtain a court order compelling arbitration.

    The Parties agree that in the event of arbitration between them, the prevailing party, as determined by the arbitrator, shall be entitled to recover reasonable attorneys' fees, costs, and expenses from the other party.

    The Parties agree that this section constitutes a valid, enforceable, and irrevocable arbitration provision, as envisioned by the California Arbitration Act, Code of Civil Procedure, sections 1280 et seq.