Terms of Use

Last updated: 07/27/20

These Terms of Use (“Terms”) govern your use of and access to the Kallpod Kontactless platform provided by Gaben, LLC dba Kallpod (“Kallpod,” “we,” “our,” or “us”), including, without limitation, the Kallpod Kontactless web application and the information, content, materials, products, and services made available on the Kallpod platform (collectively, the “Services”).

These Terms will remain in full force and effect as long as you use the Services. We encourage you to read these Terms carefully. By accessing or using the Services, you acknowledge that you have read and agree to be bound by these Terms and our Privacy Policy, which is incorporated by reference. Kallpod reserves the right to update these Terms at any time. Your continued access to and use of the Services after such updates are effective is your acknowledgment and agreement to such modifications.

ARBITRATION NOTICE: PLEASE REVIEW THE “DISPUTE RESOLUTION” SECTION BELOW CAREFULLY, AS IT REQUIRES YOU TO RESOLVE ALL DISPUTES WITH KALLPOD THROUGH BINDING INDIVIDUAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND KALLPOD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING AGAINST KALLPOD. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND WILL BE BOUND BY, ALL OF THE TERMS AND CONDITIONS OF THESE TERMS.

About Kallpod

Kallpod is a hospitality communication platform that connects guests with third-party service providers, including restaurants, hotels, and large venues (collectively, “Venues”). The Kallpod Kontactless platform lets you use your mobile device or computer to order products and services from Venues and provide real-time feedback to Venues.

Kallpod is not a Venue. The Venues offering products and services on our platform operate independently of Kallpod. Some Venues are required to comply with federal, state, and local laws, rules, regulations, and standards (collectively, “Applicable Regulations”) pertaining to their specific industry. For example, Venues that are restaurants must comply with regulations governing the preparation, sale, and marketing of food, including, without limitation, food preparation and safety and menu disclosures. Kallpod is not liable or responsible for Venues’ compliance with Applicable Regulations and does not verify any Venue’s compliance with all applicable laws. In addition, Kallpod does not guarantee the quality of the products or services provided by Venues; Kallpod does not independently verify, and is not liable for, representations made by Venues in connection with any of the products or services a Venue provides to you.

Elegibility

In order to access and use the Services, you must have a valid phone number, and you must have the power to enter a binding contract with us and not be barred from doing so under any applicable laws. If you are a minor in the jurisdiction in which you reside, your parent or legal guardian must read and agree to these Terms before you use the Services. Notwithstanding the foregoing, you are not authorized to use or access the Services if you are under the age of 13.

You are responsible for ensuring that any information you submit to us or the Services is true, accurate, current, complete, and lawful. You are also responsible for maintaining the confidentiality and security of all information you submit in connection with your account, including, without limitation, promptly notifying Kallpod if your phone number changes by emailing support@kontactless.io. You are solely responsible for the activity that occurs under your account, and Kallpod will not be liable for any injury, loss, or damages of any kind arising from or related to your acts or omissions in connection with your account, 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 previously suspended or removed you from the Services, or if your registration or your use of 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 any applicable laws or regulations. Kallpod reserves the right to terminate your access to, or suspend or remove you from, the Services at any time, for any reason or no reason, without penalty and with or without notice to you.

PERSONAL AND NON-COMMERCIAL USE LIMITATION

Kallpod grants you a limited, non-exclusive, non-transferable, and revocable license to use the Services for their intended purposes subject to your compliance with these Terms and Kallpod’s policies. Unless otherwise specified, the Services are for your personal and non-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.

PROHIBITED USES

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 immediate termination of your account, use, or access to the Services.

ALCOHOLIC BEVERAGES POLICY

Some Venues may give you the option to order alcohol products in some locations. You agree that you will comply with all applicable laws and not cause Kallpod or any Venue to contravene any applicable laws. If you place an order that includes any alcoholic beverage, you represent and warrant that you are at least 21 years of age. Upon delivery or pickup, as applicable, you will present a government-issued identification card, evidencing your age, consistent with applicable legal requirements. You agree that if any applicable legal requirements for the delivery of alcohol are not met, the Venue reserves the right to cancel the alcohol-related portion of your order. You also agree that Venues may withhold delivery of the alcoholic beverages if you appear or the recipient of the delivery appears intoxicated when receiving delivery of such products. If you do not comply with these terms, you agree that the alcoholic beverage(s) will not be released to you, and you may forfeit the cost of such beverages.

PAYMENT POLICY

Venue Orders

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 listed retail price of those goods, services, or items, plus all applicable sales taxes (the retail prices of all orders items plus all applicable sales taxes, the “Order Total”). Kallpod is not a party to your transaction with a Venue; the transaction is solely between you and the Venue. The Venue Order and the Order Total are subject to the Venue’s return and refund policies. Venues will charge, and you authorize Venues to charge, the payment method you specify at the time of purchase. If you pay any amounts with a credit card, the Venue may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has credit available for your intended purchase.

Platform Fee

Kallpod charges you a platform fee (“Platform Fee”) of $0.50 per 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 the amount you pay when you submit an order. The Platform Fee is non-refundable, except that if the Venue agrees to cancel your order, Kallpod will also refund the Platform Fee. The Platform Fee is not intended to and does not make Kallpod a party to your transaction with the Venue.

The provider of Services is Gaben, LLC. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

Gaben, LLC dba Kallpod

Address: 5225 Wilshire Blvd, Suite 800, Los Angeles, CA 90036

Phone: (888) KALLPOD

PRIVACY

We encourage you to review our Privacy Policy, which governs your use of and access to the Services.

MOBILE DATA

Your use of the Services may require mobile data services, and you may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.

THIRD-PARTY LINKS

The Services may include links or references to third-party web sites or services (“Third-Party Sites”) solely as a convenience to you, and the inclusion of any link or references does not imply endorsement by Kallpod of any such Third-Party Site. Third-Party Sites are not under our control, and we are not responsible for the contents, information, materials, products, or services of any Third-Party Site, or any link contained in a Third-Party Site, or any changes or updates to such Third-Party Sites. Your access to and use of Third-Party Sites, including the information, materials, products, or services on or available through those Third-Party Sites, is solely at your own risk and may be governed by different terms of use and privacy policies.

THIRD-PARTY SERVICE PROVIDERS

We use third-party service providers (“Third-Party Service Providers”) to help us provide the Services to you. When you register for, participate in, or access the Services, you may be required to register for an account with or provide information to a Third-Party Service Provider. You understand and acknowledge that the information you provide to a Third-Party Service Provider is governed by that Third-Party Service Provider’s privacy policy and terms of use, and Kallpod has no responsibility for the products or services that the Third-Party Service Provider provides to you. We may, in our sole discretion, for any or no reason and without penalty or notice to you, suspend or terminate our relationship with a Third-Party Service Provider.

INTELLECTUAL PROPERTY

Copyright

All content and functionality on the Services, including, without limitation, visual interfaces, text, graphics, logos, design, information, icons, images, services, content, videos, downloadable or supplementary materials, and all other elements of the Services, in addition to any concepts, know-how, tools, frameworks, software, applications or other technology, algorithms, models, processes, and industry perspectives underlying or embedded in the foregoing, along with any enhancements to, or selection, arrangement, or derivative works thereof (the “Services Materials”) is the exclusive property of Kallpod or its licensors and, to the extent applicable, is protected by U.S. and international copyright, patent, and trademark laws, international conventions, and other applicable laws governing intellectual property and proprietary rights.

Trademark

The trademarks, service marks, designs, and logos (collectively, the “Trademarks”) displayed on the Services are the registered and unregistered Trademarks of Kallpod and its licensors. We ask that you use our Trademarks only for purposes of attributing to us any content that we permit you to share under these Terms. You agree that, except as expressly permitted by us or by our licensors, where applicable, you will not use Kallpod’s Trademarks for advertising or promotional purposes, and that you will not imply any endorsement by or relationship with, Kallpod or its licensors.

Your Feedback

Kallpod may introduce new features, change existing features, or remove features from the Services at any time and without notice. If you provide Kallpod with any suggestions, feedback, or comments regarding the Services, you grant Kallpod the right to use such suggestions, feedback, or comments for any purpose without restriction or payment to you.

INDEMNIFICATION

You agree, to the extent permissible under your jurisdiction's laws, to indemnify, defend, and hold harmless Kallpod and its parent, successors, affiliated companies, contractors, officers, directors, employees, agents and its third-party suppliers, licensors, and partners (the “Kallpod Parties”) from and against all losses, damages, liabilities, demands, judgments, settlements, costs and expenses of any kind (including legal fees and expenses), from any claim or demand relating to or arising out of (i) your access to, use or misuse of the Services; (ii) your breach or alleged breach of these Terms, or any violation of the Terms, including any breach of the representations, warranties, and covenants made herein; or (iii) your failure to comply with applicable laws, including the infringement of any intellectual property, privacy, or other right of any person or entity by you or any third-party using your account. Kallpod reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding when we become aware of it.

DISCLAIMER

THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS OTHERWISE SPECIFIED IN WRITING. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE KALLPOD PARTIES DISCLAIM, WITH RESPECT TO THE SERVICES, ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. KALLPOD DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE SECURE, UNINTERRUPTED, AND/OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND/OR THAT THE SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.

KALLPOD DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, CURRENTNESS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE SAFETY, QUALITY, AND/OR TIMING OF THE PRODUCTS OR SERVICES ORDERED OR DELIVERED ON THE SERVICES. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO YOU.

KALLPOD WILL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND KALLPOD'S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. KALLPOD IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

KALLPOD RELIES UPON VENUES AND OTHER THIRD-PARTY PROVIDERS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. KALLPOD DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH 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 IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, IN NO EVENT WILL KALLPOD BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, REPUTATION, USE, OR OTHER ECONOMIC ADVANTAGE), EVEN IF KALLPOD HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF A WARRANTY, CONTRACT, NEGLIGENCE, TORT, OR OTHER ACTION THAT IN ANY MANNER ARISES OUT OF OR IN CONNECTION WITH THE USE OF, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH THE SERVICES OR BY KALLPOD. KALLPOD ASSUMES NO RESPONSIBILITY AND WILL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM THE SERVICES. KALLPOD ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH THE SERVICES, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR 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 PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL KALLPOD'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN WARRANTY, CONTRACT, OR TORT EXCEED (A) THE AMOUNT PAID BY YOU TO KALLPOD OR A VENUE, IF ANY, OR (B) $100 (WHICHEVER IS LESS). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PROVIDED BY LAW.

YOU AND KALLPOD AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND KALLPOD AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE FAIR AND REASONABLE. EXCEPT AS MAY BE OTHERWISE PROVIDED FOR IN THIS SECTION, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.

DISPUTE RESOLUTION

CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND KALLPOD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Arbitration means that an arbitrator and not a judge or jury will decide the claim. Rights to prehearing exchange of information and appeals may also be limited in arbitration.

If this class action waiver is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms of Use. You further acknowledge that any claim arising under these Terms must be brought within one year of its accrual or it will be waived. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this agreement to arbitrate, as well as all threshold arbitrability issues, including whether this Dispute Resolution provision is unconscionable and any defense to arbitration.

Arbitration Procedures and Location

The arbitration will be administered by JAMS under its Comprehensive Rules in effect at the time the arbitration demand is made. The current rules, effective July 1, 2014, can be found here: http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS arbitration rules can be found here: http://www.jamsadr.com/rules-clauses/. In the event of any conflict between the rules and these Terms, these Terms will apply. You and Kallpod agree to submit to the jurisdiction of a single neutral arbitrator selected in accordance with the JAMS Comprehensive Rules.

The arbitration will be held in Los Angeles, California, or any other location you and Kallpod mutually agree upon in writing.

Arbitration Fees

The JAMS rules will govern payment of all arbitration fees and each party will be responsible for their own fees under those rules.

Changes

Kallpod reserves the right to change this "Dispute Resolution" section, but any such changes will not apply to claims filed before the effective date of such amendment. Notwithstanding the provisions of the modification-related provisions above, if Kallpod changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you agree that your continued use of the Services after such change will be deemed acceptance of those changes.

MISCELLANEOUS

Our failure to exercise or enforce any right or provision of the Terms will not constitute a waiver of such right or provision. Any waiver of any part of the Terms will be effective only with our written, signed consent. These Terms are governed by and construed in accordance with the laws of the State of California without reference to the principles of conflicts of laws thereof. Venue for any legal proceedings will be in Los Angeles County, California. If any provision of the Terms is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from the Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions. You may not transfer or assign any of these Terms, including any of the rights or licenses we grant to you. We may assign these Terms without consent or any restriction. Any assignment attempted to be made in violation of the Terms will be null and void. Upon termination of the Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 5 through 15. These Terms use heading references, which are not a part of the Terms and should not be deemed to limit or affect any of the provisions in these Terms. The Terms and the Privacy Policy constitute the entire agreement between you and Kallpod relating to the subject matter herein and will not be modified except by a change to the Terms or Privacy Policy made by us according to these Terms.