The Kapesni website (the "Site"), together with the Kapesni mobile application ("Kapesni App," or “App,”), and any other tours, content, features, website(s), and/or applications offered from time-to-time by Kapesni, LLC (referred to as “us,” “we,” or “our”) comprise the Kapesni Service (the "Service").
All the text, images, marks, logos, compilations (meaning the collection, arrangement and assembly of information) and other content on this website, other than User Content as defined below ("Site Content"), and all software embodied in this website or otherwise used by Kapesni, LLC to deliver the Services ("Software") is proprietary to us or to third parties, and except as otherwise expressly permitted by this Agreement, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other reduction of such software to human-readable form is prohibited.
User Names and Passwords
Several activities on the Site and use of the Service require user names and passwords (e.g., if you establish a user account with us). You understand and agree that if your user name and password is used on the Site, we may attribute all use to you and you will be legally bound by it even if the person using your user name and password had no actual authority to do so or failed to correct an error. You agree to protect your password as confidential information and to prohibit anyone you share it with from disclosing it to anyone not authorized by you. We recommend that you not share your password, but if you do, you agree to defend, indemnify and hold us harmless from and against any use claimed to be unauthorized.
You agree to supply only accurate, current and complete information when setting up an account on the Site, creating a Tour, reviewing a Tour, or otherwise using the Site or related Service. You also agree to review and correct all information that is supplied about you (such as if our Site pre-populates information that you would otherwise have to enter) to ensure that it is always accurate, current and complete.
Any computer software downloadable (such as the Kapesni App) or otherwise made available to you in connection with the Service is licensed subject to the terms of the applicable licensing agreement, which terms are incorporated into these Terms. In using the Service, you agree to:
One of the features of the Service is the ability to create and publish your own Kapesni Tours and content (“Tours”) – such as a guide to a museum or other attraction. You agree that these Terms apply to Tours that you create using the Service. You acknowledge and agree as follows:
Digital Millennium Copyright Act
Kapesni, LLC complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints or objections to material posted on the Services you may contact our Designated Agent at the following address:
352 Pleasant Street Holyoke, MA 01040
Phone: 413 200 8687
Any notice alleging that materials hosted by or distributed through the Services infringe intellectual property rights must include the following information:
If material that you have posted to the Services has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. §512 (g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following:
In using Kapesni, you may upload, post, or submit to Kapesni, LLC or distribute using Kapesni, LLC: photographs, text, graphics, video, audio, documents, and other materials and information (collectively, "User Content"). The User Content remains your property, and Kapesni, LLC does not claim any ownership of the copyright or other proprietary rights in such information and User Content. Notwithstanding the foregoing, you agree that:
KAPESNI, LLC is under no obligation to edit or control User Content that you and other users post to or distribute, and will not be in any way responsible or liable for User Content. KAPESNI, LLC does not vet or control the Customers or other individuals that use the Services. You post, access and use User Content at your own risk, and KAPESNI, LLC and its Partners shall not be liable for any loss or damage that any person may suffer as a result of using the Service or using or relying on the User Content. Customers should exercise caution in interacting with unknown persons that they meet playing KAPESNI, LLC in the same way that they would exercise caution in the physical world.
In using the Site and Service, you shall NOT:
We reserve the right, in our sole discretion, to terminate your access to the Site and/or Service, remove any user name that you have developed, refuse to pose, edit, or remove any Tours that you have posted, and terminate your privileges, with or without prior notice to you, for violation of the letter or spirit of these Terms, applicable law, or if you create possible legal exposure for us or for any other reason. We shall have the right, but not the obligation, to monitor the content of the Site, including Tours and other user controlled areas to determine compliance with these Terms.
We reserve the right to disclose information maintained about you if required to do so by applicable law or court order or to enforce these Terms.
We reserve the right (but are not obligated) to do any or all of the following:
Kapesni, LLC has no liability or responsibility to users of the Services or any other person or entity for performance or nonperformance of the aforementioned activities.
If you feel that your rights have been violated (including if you believe that posted material infringes the intellectual property or other rights of a third party), please contact us using the contact information on the Site.
The Service may include content provided by third parties, including Tours posted on the Site by other users of the Service or official Tours that are sanctioned by a particular attraction. The inclusion of such third party content does not constitute or imply our endorsement or recommendation of any third party (including without limitation the content of any Tours). We make no representations or warranties regarding the accuracy or completeness of any such third party content. Statements and opinions in Tours and other materials on the Site are those of the individual contributors or advertisers, as indicated.
The Site may contain links to websites owned and operated by third parties (“Linked Sites”). The Linked Sites are not under our control and we are not responsible for the contents of any Linked Site, including without limitation, any further link contained in a Linked Site, or any errors or omissions in the contents of any Linked Site. We provide these links to you only as a convenience, and the inclusion of a link does not imply any endorsement of or any affiliation or connection between us and the Linked Site or its owners. You are responsible for evaluating the accuracy, completeness, applicability, and usefulness of the contents of any Linked Site, including without limitation, any opinion, advice, information provided regarding services, products, or any other information.
There is no fee for using the Kapesni App or for viewing Tours via the Kapesni website. We may introduce a premium version in the future. We reserve the right to charge fees for any future versions of the Service and for any additional modules and/or content.
Organizations pay a monthly fee to create and maintain Kapesni Tours: for use of the software, for data and file storage, and for bandwidth. You acknowledge that the nature of the service furnished and the rates and charges have been communicated to you. You are aware that Kapesni, LLC may prospectively change the specified rates and charges from time to time.
Organizations may also choose to hire Kapesni, as consultants and billed on an hourly basis, for projects like content creation or customization of the Kapesni interface. Such consulting projects will be contracted separately and may have their own conditions in addition to these Terms.
Kapesni, LLC may temporarily deny service or terminate this Agreement upon the failure of Subscriber to pay charges when due. Such termination or denial will not relieve Subscriber of responsibility for the payment of all accrued charges, plus reasonable interest and any collection fees.
CANCELLING YOUR ACCOUNT
We reserve the right to run advertisements and promotions within the Service, including in Tours that you post (the "Promotions"). You agree that we have the right to run such Promotions without any compensation to you. Any dealings, promotions, or transactions between you and any third parties with regard to the Promotions, and any other terms, conditions, warranties or representations associated with such dealings, promotions, or transactions, are solely between you and such third party; we are not responsible or liable for any part of any such dealings, promotions, or transactions.
We may update and/or revise the Site, the Tours, and/or the Service at any time for any reason. We shall not have any obligation to inform you of or furnish to you any such updates and/or revisions.
We reserve the right to modify the terms, conditions, and notices under which we offer the Service, including without limitation any modifications associated with the usage of the Site. You are responsible for regularly reviewing these Terms, conditions and notices, and any additional provisions posted on the Site. Your continued usage of the Service after the effective date of such modifications constitutes your acceptance of, and agreement to, such modifications.
Your use of the Site, Kapesni App, Tours, and the Service is at your own risk. We do not guarantee the accuracy of any information within the Site, Kapesni App, Tours, and/or the Service. We are not responsible for the actions or content of third parties, and you release us and our officers, directors, employees and agents from any claims and damages, known or unknown, arising in any way connected with any claim that you may have against a third party. You waive any law or statute that states in substance that “A general release does not extend to claims to which a party does not know or suspect to exist in his/her favor at the time of executing the release, which if known by him/her must have materially affected his/her settlement.” WE provide the site, KAPESNI APP, TOURS and the SERVICE ‘AS IS’, ‘As available’ and ‘with all faults’ without any representations or warranties whatsoever, and we disclaim all warranties, express, implied or statutory, including but not limited to warranties of merchantability, fitness for a particular purpose, NONINFRINGEMENT, accuracy, results achieved, COMPLETENESS, privacy, security, or any warranties arising out of usage of trade, course of performance or course of dealing. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
By using the Site, Kapesni App, Tours and the Service, you agree to indemnify and hold harmless, us, our subsidiaries, affiliates, officers, and employees from any and all claims and expenses, including attorney's fees, arising from your use.
Warranty Exclusions and Limitations of Liability
KAPESNI, LLC warrants that the Services and KAPESNI, LLC Property will conform substantially to the descriptions set forth on the KAPESNI, LLC website. However, KAPESNI, LLC does not warrant that the Services or KAPESNI, LLC Property will operate error-free or without downtime. KAPESNI, LLC may pause or interrupt the Services at any time, and users should expect periodic downtime for updates to KAPESNI, LLC. In the event of any breach of this warranty, the Customer’s sole and exclusive remedy, and KAPESNI, LLC’s sole and exclusive liability, shall be (at KAPESNI, LLC’s option) to remedy the failure or to refund the amount paid by the Customer, if any. Except as set forth in the foregoing sentence, KAPESNI, LLC makes no representations or warranties of any kind regarding the Services or the KAPESNI, LLC Property. Kapesni, LLC expressly disclaims any and all warranties, whether express or implied, including: all warranties of merchantability, fitness for a particular purpose, title, noninfringement, and any and all warranties arising from course of dealing and usage of trade; that the services and Kapesni, LLC property will meet your requirements, will always be available, accessible, uninterrupted, timely, secure or operate without error, as to the results that may be obtained from the operation, use or other exploitation of the services or Kapesni, LLC property, and as to the accuracy or reliability of any information obtained from the services or the Kapesni, LLC property. No advice or information, whether oral or written, obtained by you from KAPESNI, LLC or through the Services will create any warranty not expressly stated herein.
Under no circumstances will you be entitled to recover from Kapesni, LLC or any partner any incidental, consequential, indirect, punitive or special damages (including damages for loss of business, loss of profits or loss of use), whether based on contract, tort (including negligence), or otherwise arising from or relating to the services or Kapesni, LLC property, even if Kapesni, LLC or such partner has been informed or should have known of the possibility of such damages.
In any event, the maximum aggregate liability of Kapesni, LLC and its partners for any and all damages arising from the services or the Kapesni, LLC property shall be a refund of the amount paid by you to Kapesni, LLC, if any.
Some jurisdictions do not allow the limitation or exclusion of warranties or of liability, so some of the above limitations or exclusions may not apply to you.
IDEAS SUBMITTED TO KAPESNI, LLC
Kapesni, LLC is pleased to hear from you and welcomes your comments about the Services. In the event that you submit ideas or suggestions for the Services ("Feedback"), the Feedback will be deemed, and will remain, the sole property of Kapesni, LLC. None of the Feedback will be subject to any obligation of confidence on the part of Kapesni, LLC, and Kapesni, LLC will not be liable for any use or disclosure of any Feedback. Without limiting the foregoing, Kapesni, LLC will be entitled to unrestricted use and other exploitation of the Feedback for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Feedback.
You may NOT use the Service if you are under 13 years of age. If you are under the age of 13, you are not permitted to register as a Customer or to send personal information to Kapesni, LLC.
In no event shall Kapesni, LLC be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside Kapesni, LLC’s reasonable control.
Except as expressly stated herein, these Terms constitute the entire agreement between you and us with reference to your usage of the Site, the Kapesni App, Tours, and the Service. There are no agreements, conditions, understandings or representations, oral or written, express or implied, with reference to the subject matter of these Terms that are not merged herein, expressly referenced herein, or superseded hereby. These Terms do not limit any rights that we may have under trade secret, copyright, patent, trademark or other laws. These Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflicts of law provisions. Any action under these Terms shall be settled by binding arbitration in Hampden County, Massachusetts under the rules of the American Arbitration Association. If any provision of these Terms is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.
No delay or omission by KAPESNI, LLC in exercising any of its rights occurring upon any noncompliance or default by you with respect to any of the terms and conditions of this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by KAPESNI, LLC of any of the covenants, conditions or agreements to be performed by you will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained. As used in this Agreement, "including" means "including but not limited to" and the term "partner" is used solely to denote another entity with whom KAPESNI, LLC has a sponsorship or marketing agreement, not a participant in a legal partnership with a view to conducting a business enterprise in which participants share profits and losses. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between you and KAPESNI, LLC regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. You shall not assign or transfer this Agreement or any right or obligation hereunder to any third party. You agree that the electronic text of this Agreement constitutes a writing and your assent to the terms and conditions hereof constitutes a "signing" for all purposes.
We may freely assign, sublicense, delegate or transfer all or any portion of our rights or responsibilities under these Terms by operation of law or otherwise without notice to you. Any assignment of these Terms by us in connection with a sale of its business shall relieve us from any further liability hereunder. All the terms and provisions of these Terms shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. The captions and section headings used in these Terms are inserted for convenience only and shall not affect the meaning or interpretation of these Terms.