Last updated: 02/10/23
ARBITRATION NOTICE: PLEASE REVIEW THE “DISPUTE RESOLUTION”SECTION BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITHKONTACTLESS THROUGH BINDING INDIVIDUAL ARBITRATION. YOU ACKNOWLEDGE AND AGREETHAT YOU AND KONTACTLESS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. YOUFURTHER ACKNOWLEDGE AND AGREE THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE AS APLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVEPROCEEDING AGAINST KONTACTLESS. BY ENTERING THIS AGREEMENT, YOU EXPRESSLYACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND WILL BE BOUND BY,ALL OF THE TERMS AND CONDITIONS OF THESE TERMS.
Kontactless is a hospitality communication platform thatconnects guests with third-party service providers, including restaurants,hotels, and large venues (collectively, “Venues”). The Kontactless platformlets you use your mobile device or computer to order products and services fromVenues and provide real-time feedback to Venues.
Kontactless is not a Venue. The Venues offering products andservices on our platform operate independently of Kontactless. Some Venues arerequired to comply with federal, state, and local laws, rules, regulations, andstandards (collectively, “Applicable Regulations”) pertaining to their specificindustry. For example, Venues that are restaurants must comply with regulationsgoverning the preparation, sale, and marketing of food, including, withoutlimitation, food preparation and safety and menu disclosures. Kontactless isnot liable or responsible for Venues’ compliance with Applicable Regulationsand does not verify any Venue’s compliance with all applicable laws. In addition,Kontactless does not guarantee the quality of the products or services providedby Venues; Kontactless does not independently verify, and is not liable for,representations made by Venues in connection with any of the products orservices a Venue provides to you.
In order to access and use the Services, you must have a validphone number, and you must have the power to enter a binding contract with usand not be barred from doing so under any applicable laws. If you are a minorin the jurisdiction in which you reside, your parent or legal guardian mustread and agree to these Terms before you use the Services. Notwithstanding theforegoing, you are not authorized to use or access the Services if you areunder the age of 13.
You are responsible for ensuring that any information you submitto us or the Services is true, accurate, current, complete, and lawful. You arealso responsible for maintaining the confidentiality and security of allinformation you submit in connection with your account, including, withoutlimitation, promptly notifying Kontactless if your phone number changes byemailing email@example.com.You are solely responsible for the activity that occurs under your account, andKontactless will not be liable for any injury, loss, or damages of any kindarising from or related to your acts or omissions in connection with youraccount, or the acts or omissions of someone using your account, including,without limitation, you failure to keep your phone number current.
You may not use or access the Services if we have previouslysuspended or removed you from the Services, or if your registration or your useof the Services is not in compliance with any and all applicable laws or these Terms.Also, you may not use the Services if your use would cause us to violate anyapplicable laws or regulations. Kontactless reserves the right to terminateyour access to, or suspend or remove you from, the Services at any time, forany reason or no reason, without penalty and with or without notice to you.
PERSONAL AND NON-COMMERCIAL USELIMITATION
Kontactless grants you a limited, non-exclusive,non-transferable, and revocable license to use the Services for their intendedpurposes subject to your compliance with these Terms and Kontactless' policies.Unless otherwise specified, the Services are for your personal andnon-commercial use. You may not modify, copy, distribute, transmit, display,perform, reproduce, publish, license, create derivative works from, transfer,or sell the Services, in whole or in part, or any other information, products,or services obtained from the Services.
You may not use the Services for any of the following:
- reproducing, duplicating, copying, selling, reselling, publishing, uploading, posting, transmitting, distributing or otherwise exploiting for any purpose, any portion of, functionality of, or access to the Services, except for your own, personal non-commercial use;
- modifying, adapting, translating or creating derivative works based upon the Services;
- selling or renting any part of the Services, any derivative works based in whole or in part on the Services, or any collective work that includes any part of the Services;
- using the Services in violation of any and all applicable laws, rules, and regulations;
- reverse engineering, modifying, altering (including by removing or disabling any security or technological safeguards, disclaimers, or legends), any portion of, functionality of, or access to the Services;
- deleting the copyright or other proprietary rights notices on the Services;
- removing, circumventing, disabling, damaging or otherwise interfering with security-related features of the Services, features that prevent or restrict use or copying of any of the Services, or features that enforce limitations on the use of the Services; or
- intentionally interfering with or damaging the operation of the Services or any user's enjoyment of it, by any means, including without limitation by participation in any denial-of-service type attacks or by uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
Any violation of these Terms may result in the immediatetermination of your account, use, or access to the Services.
ALCOHOLIC BEVERAGES POLICY
Some Venues may give you the option to order alcohol products insome locations. You agree that you will comply with all applicable laws and notcause Kontactless or any Venue to contravene any applicable laws. If you placean order that includes any alcoholic beverage, you represent and warrant thatyou are at least 21 years of age. Upon delivery or pickup, as applicable, youwill present a government-issued identification card, evidencing your age,consistent with applicable legal requirements. You agree that if any applicablelegal requirements for the delivery of alcohol are not met, the Venue reservesthe right to cancel the alcohol-related portion of your order. You also agreethat Venues may withhold delivery of the alcoholic beverages if you appear orthe recipient of the delivery appears intoxicated when receiving delivery ofsuch products. If you do not comply with these terms, you agree that thealcoholic beverage(s) will not be released to you, and you may forfeit the costof such beverages.
When you use the Services to place an order for goods, services,or other items from a Venue (a “Venue Order”), you agree to pay the listedretail price of those goods, services, or items, plus all applicable salestaxes (the retail prices of all orders items plus all applicable sales taxes,the “Order Total”). Kontactless is not a party to your transaction with aVenue; the transaction is solely between you and the Venue. The Venue Order andthe Order Total are subject to the Venue’s return and refund policies. Venueswill charge, and you authorize Venues to charge, the payment method you specifyat the time of purchase. If you pay any amounts with a credit card, the Venuemay seek pre-authorization of your credit card account prior to your purchaseto verify that the credit card is valid and has credit available for yourintended purchase.
Kontactless charges you a platform fee (“Platform Fee”) of $0.50per Venue Order for facilitating the transmission of your order to the Venue.The Platform Fee is added to the Order Total, and will be included in theamount you pay when you submit an order. The Platform Fee is non-refundable,except that if the Venue agrees to cancel your order, Kontactless will alsorefund the Platform Fee. The Platform Fee is not intended to and does not makeKontactless a party to your transaction with the Venue.
The provider of Services is Kontactless, Inc. If you are aCalifornia resident, in accordance with Cal. Civ. Code §1789.3, you may reportcomplaints to the Complaint Assistance Unit of the Division of ConsumerServices of the California Department of Consumer Affairs by contacting them inwriting at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or bytelephone at (800) 952-5210.
Address: 5225 Wilshire Blvd, Suite 800, Los Angeles, CA 90036
Phone: (866) 491-1466
Your use of the Services may require mobile data services, andyou may incur additional charges from your wireless provider for these services.You agree that you are solely responsible for any such charges.
THIRD-PARTY SERVICE PROVIDERS
All content and functionality on the Services, including,without limitation, visual interfaces, text, graphics, logos, design,information, icons, images, services, content, videos, downloadable orsupplementary materials, and all other elements of the Services, in addition toany concepts, know-how, tools, frameworks, software, applications or othertechnology, algorithms, models, processes, and industry perspectives underlyingor embedded in the foregoing, along with any enhancements to, or selection,arrangement, or derivative works thereof (the “Services Materials”) is theexclusive property of Kontactless or its licensors and, to the extentapplicable, is protected by U.S. and international copyright, patent, andtrademark laws, international conventions, and other applicable laws governingintellectual property and proprietary rights.
The trademarks, service marks, designs, and logos (collectively,the “Trademarks”) displayed on the Services are the registered and unregisteredTrademarks of Kontactless and its licensors. We ask that you use our Trademarksonly for purposes of attributing to us any content that we permit you to shareunder these Terms. You agree that, except as expressly permitted by us or byour licensors, where applicable, you will not use Kontactless' Trademarks foradvertising or promotional purposes, and that you will not imply any endorsementby or relationship with, Kontactless or its licensors.
Kontactless may introduce new features, change existingfeatures, or remove features from the Services at any time and without notice.If you provide Kontactless with any suggestions, feedback, or commentsregarding the Services, you grant Kontactless the right to use suchsuggestions, feedback, or comments for any purpose without restriction orpayment to you.
You agree, to the extent permissible under your jurisdiction'slaws, to indemnify, defend, and hold harmless Kontactless and its parent,successors, affiliated companies, contractors, officers, directors, employees,agents and its third-party suppliers, licensors, and partners (the “KontactlessParties”) from and against all losses, damages, liabilities, demands,judgments, settlements, costs and expenses of any kind (including legal feesand expenses), from any claim or demand relating to or arising out of (i) youraccess to, use or misuse of the Services; (ii) your breach or alleged breach ofthese Terms, or any violation of the Terms, including any breach of therepresentations, warranties, and covenants made herein; or (iii) your failureto comply with applicable laws, including the infringement of any intellectualproperty, privacy, or other right of any person or entity by you or anythird-party using your account. Kontactless reserves the right, at yourexpense, to assume the exclusive defense and control of any matter for whichyou are required to indemnify us, and you agree to cooperate with our defenseof these claims. You agree not to settle any such matter without our priorwritten consent. We will use reasonable efforts to notify you of any such claim,action, or proceeding when we become aware of it.
THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISESPECIFIED IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THEKONTACTLESS PARTIES DISCLAIM, WITH RESPECT TO THE SERVICES, ALL WARRANTIES,EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TOIMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.KONTACTLESS DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE SECURE,UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THATTHE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
KONTACTLESS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONSREGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF THEIRCORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OROTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY, AND/OR TIMING OFTHE PRODUCTS OR SERVICES ORDERED OR DELIVERED ON THE SERVICES. APPLICABLE LAWMAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAYNOT FULLY APPLY TO YOU.
KONTACTLESS WILL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCERESULTING FROM CAUSES BEYOND KONTACTLESS' REASONABLE CONTROL, INCLUDING,WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THEINTERNET AND ELECTRONIC COMMUNICATIONS. KONTACTLESS IS NOT RESPONSIBLE FOR ANYDELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
KONTACTLESS RELIES UPON VENUES AND OTHER THIRD-PARTY PROVIDERSTO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCTSAFETY. KONTACTLESS DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLETHROUGH THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE,INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION,IMAGES, FOOD QUALITY OR DESCRIPTIONS, PRICING, OR RATINGS. ALL CONTENT ISPROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATIONPROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUTLIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENTWILL KONTACTLESS BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL,PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGESWHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS,REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF KONTACTLESS HAS BEENPREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF AWARRANTY, CONTRACT, NEGLIGENCE, TORT, OR OTHER ACTION THAT IN ANY MANNER ARISESOUT OF OR IN CONNECTION WITH THE USE OF, INABILITY TO USE, PERFORMANCE OF, ORSERVICES PROVIDED ON OR THROUGH THE SERVICES OR BY KONTACTLESS. KONTACTLESSASSUMES NO RESPONSIBILITY AND WILL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSESTHAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESSTO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE SERVICES.KONTACTLESS ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OFOR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIALAVAILABLE ON OR THROUGH THE SERVICES, AS WELL AS ANY THIRD PARTY WEBSITE PAGESOR ADDITIONAL WEBSITES LINKED FROM THE SERVICES, FOR ANY ERROR, DEFAMATION,LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER,INACCURACY CONTAINED THEREIN, OR HARM TO PERSON OR PROPERTY CAUSED THEREBY.THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSEOF ANY LIMITED REMEDY. IN NO EVENT WILL KONTACTLESS' TOTAL LIABILITY TO YOU FORALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, ORTORT EXCEED (A) THE AMOUNT PAID BY YOU TO KONTACTLESS OR A VENUE, IF ANY, OR(B) $100 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THEEXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES,IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PROVIDED BYLAW.
YOU AND KONTACTLESS AGREE THAT THE WARRANTY DISCLAIMERS ANDLIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OFTHIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THECONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THEDECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND KONTACTLESS AGREETHAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENTARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THISSECTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALLCLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITIES, AND NOT AS APLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, ORREPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). THE ARBITRATORMAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS OR ENGAGE IN ANY CLASSARBITRATION. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND KONTACTLESSARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASSACTION.
Arbitration means that an arbitrator and not a judge or jurywill decide the claim. Rights to prehearing exchange of information and appealsmay also be limited in arbitration.
Arbitration Procedures and Location
The arbitration will be administered by JAMS under itsComprehensive Rules in effect at the time the arbitration demand is made. Thecurrent rules, effective July 1, 2014, can be found here:http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS arbitration rulescan be found here: http://www.jamsadr.com/rules-clauses/. In the event of anyconflict between the rules and these Terms, these Terms will apply. You andKontactless agree to submit to the jurisdiction of a single neutral arbitratorselected in accordance with the JAMS Comprehensive Rules.
The arbitration will be held in Los Angeles, California, or any other location you and Kontactless mutually agree upon in writing.
The JAMS rules will govern payment of all arbitration fees andeach party will be responsible for their own fees under those rules.
Kontactless reserves the right to change this "DisputeResolution" section, but any such changes will not apply to claims filedbefore the effective date of such amendment. Notwithstanding the provisions ofthe modification-related provisions above, if Kontactless changes this"Dispute Resolution" section after the date you first accepted theseTerms (or accepted any subsequent changes to these Terms), you agree that yourcontinued use of the Services after such change will be deemed acceptance ofthose changes.