Last Updated: [10,16,2020]
These terms of service constitute a legally binding agreement (this “Agreement”) between you (“you”, “your” or “yours”) and Kaptyn Nevada, LLC. and its subsidiaries and affiliates (“Kaptyn,” “we,” “us” or “our”) with respect to your use of the Kaptyn application, website, and/or technology platform (collectively, the “Kaptyn Platform”) and our Services (as defined below). Please read this Agreement carefully before using The Kaptyn Platform or our Services.
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND KAPTYN HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION XV BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST KAPTYN TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.
By entering into this Agreement, by accessing The Kaptyn Platform and/or by using our Services you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions in Section XV) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS THE KAPTYN PLATFORM OR USE OUR SERVICES.
I. The Kaptyn Platform
We use The Kaptyn Platform to provide reservation and transportation services to our customers (“Riders”) and/or their authorized guests who seek transportation to certain destinations by utilizing Kaptyn’s dedicated fleet of vehicles and our employee-drivers (“Drivers”).
Should a Rider choose to become a subscriber (“Member”) and commit to pay any required Monthly Subscription Fee (defined below) to Kaptyn as listed in the Kaptyn Passenger App (“Rider App”). Members will be charged a Monthly Subscription Fee each month and Member’s payment to Kaptyn will automatically renew each month, unless you cancel your subscription through your Rider App before the end of the current subscription period. ALL PAID SUBSCRIPTIONS ARE NON-REFUNDABLE. Kaptyn may change the price for the Monthly Subscription Fee from time to time, and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for Monthly Subscription Fee will take effect at the start of the next subscription period following the date of the price change. As permitted by local law, you accept the new price by continuing to use The Kaptyn Platform after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from Membership prior to the price change going into effect. Therefore please make sure you read any such notification of price changes carefully.
Each person may only create one Rider profile, and Kaptyn reserves the right to shut down any additional profile. As a Rider, you authorize Kaptyn to match you (and your guests) with a Driver based on factors such as your location, the estimated time to pickup, destination, your user preferences, Kaptyn Platform efficiency, and, if necessary or desirable, to cancel an existing match and rematch based on the same considerations. For purposes of this Agreement, the services provided by Kaptyn to Riders and/or their guests through The Kaptyn Platform (including transportation services), as well as any other services provided by Kaptyn to Riders and/or their guests, shall be referred to collectively as the “Services”. Any decision by a Rider to accept Services is a decision made in such Rider’s sole discretion.
EACH TIME A RIDER REQUESTS OR USES OUR SERVICES, THE RIDER CONSENTS TO THIS SECURITY RECORDING ON BEHALF OF HIS OR HERSELF AND ANY OTHER PERSONS THAT RIDER INVITES INTO THE VEHICLE (INCLUDING MINORS). EACH RIDER IS SOLELY RESPONSIBLE FOR ENSURING THAT ANY OTHER PERSON HE OR SHE INVITES INTO AN KAPTYN VEHICLE IS FULLY AWARE OF THESE RECORDINGS AND CONSENTS TO BEING RECORDED BEFORE SUCH PERSON ENTERS ANY KAPTYN VEHICLE. BY ENTERING AN KAPTYN VEHICLE, EACH RIDER AGREES THAT HE OR SHE HAS RECEIVED SUCH CONSENT FROM SUCH OTHER PERSONS.
II. Modification to the Agreement
We shall have the right at any time and without prior notice, at our sole discretion, to revise this Agreement or to impose new terms and conditions with respect to access to or use of the Services. Such revisions and additions shall be effective immediately upon posting the revised or additional terms and conditions. You are responsible for reviewing this Agreement periodically for any modification that may affect your rights or obligations. You agree that you shall be deemed to be apprised of and bound by any modification to this Agreement. Any access of The Kaptyn Platform or use of our Services by you after revisions or additions to this Agreement shall constitute and be deemed to be your acceptance of such revisions or additions.
III. Eligibility, Authority and Authorization
A Rider Account to utilize The Kaptyn Platform may only be created by individuals who can form legally binding contracts under applicable law. You must be at least eighteen (18) years of age, or the age of legal majority in your jurisdiction (if different than 18), to create a Rider Account, unless a specific Service permits otherwise. By creating a Rider Account, you represent and warrant that you are at least eighteen (18) years old or the age of legal majority in your jurisdiction (if different than 18) and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. Unless your Rider Account has been temporarily or permanently deactivated, you may opt to invite guests into your Kaptyn vehicle in an amount up to the lesser of the available seatbelts in the vehicle or as proscribed by Kaptyn upon the reservation of the Service. Except as otherwise provided herein, you may not assign or otherwise transfer your Rider Account to any other person or entity.
Kaptyn permits you to request that Kaptyn provide Services to unaccompanied minor children ages thirteen (13) to seventeen (17) (a “Minor Child”). The Service is not available for the unaccompanied use by persons under the age of thirteen (13). Kaptyn shall not be required to verify the identity or age of any Rider or Minor Child prior to providing the Services. You, as the Rider Account owner, agree to obtain the consent of each Minor Child passenger’s parent or legal guardian prior to arranging Kaptyn Services. At the time of each request for the Services on behalf of a Minor Child, you warrant and represent by your request for the Services, that you have obtained authority granted by such Minor Child’s parent or legal guardian to request Kaptyn Services on behalf of the Minor Child passenger. Any unaccompanied Service provided to a Minor Child and requested by an authorized Rider Account is presumed by Kaptyn to be an authorized use of the Services. If you are accessing or using our Service on behalf of another person or entity, you represent that you are authorized to accept this Agreement on that person or entity’s behalf, that the person or entity agrees to be bound by this Agreement, and that you shall be jointly and severally responsible to Kaptyn if you or the other person or entity violates this Agreement. You hereby agree to defend, indemnify and hold harmless Kaptyn, as well as Kaptyn’s officers, directors, employees, agents, or shareholders, from and against any and all claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any misrepresentation by you of such authority or authorization, in connection with the providing of the Services to any Minor Child passenger and/or your guests’ use of The Kaptyn Platform.
Any child or minor passenger that requires the use of a booster seat or safety seat must be accompanied by a parent or legal guardian over the age of eighteen (18) years to assist the child with installing the booster or safety seat and buckling into and out of the booster seat or safety seat. Kaptyn will not provide booster seats or safety seat for the Rider or the Rider’s guests. Kaptyn Drivers will not assist in installing a booster or safety seat or buckling a minor child into a booster or safety seat at any time. You agree to comply with all applicable laws when accessing or using the Services, and you may only access or use the Services for lawful purposes.
IV. Transportation Charges
As a Rider, you understand that, in addition to your Monthly Subscription Fee, your request or use of our transportation Services will result in charges to you (“Charges”). Charges include: Fares (as defined below), Service Fees (as defined below), Damage Fees (as defined below), and other applicable fees, tolls, and/or surcharges including without limitation, a booking fee, municipal tolls, airport surcharges or processing fees for split payments (“Other Charges”). Pricing may vary based on the type of service you request. You are responsible for reviewing the estimated Fare on The Kaptyn Platform and you shall be responsible for all Charges incurred under your Rider Account regardless of your awareness of such Charges or the amounts thereof.
Fares. When you request a reservation for transportation Services, we will provide you with a fare estimate based upon our estimate of the duration and distance of your ride. THE FARE ESTIMATE IS AN APPROXIMATION ONLY. Kaptyn does not guarantee that the fare estimate will be equal to the actual Fare payable for the same ride. The final amount payable by you may be greater than or less than the fare estimate. After the conclusion of your ride, we use GPS data from your Driver’s vehicle to calculate the cost of your ride based on duration and distance traveled on your ride, inclusive of any applicable taxes (where required by law) (“Fare”). We cannot guarantee the availability or accuracy of GPS data. If we lose signal we will calculate the cost of your ride based on time and distance using other available data from your ride. Kaptyn will use reasonable efforts to inform you of Fares that may apply, provided that you will be responsible for Fares incurred under your Rider Account regardless of your awareness of such Fares or the amounts thereof.
Fees and Other Charges.
Service Fee. You will be charged a “Service Fee” equal to 18% of your final Fare. We collect this Service Fee to support ongoing Kaptyn operations, including but not limited to distributing incentive compensation to Drivers and/or other Kaptyn personnel involved in managing and maintaining the Kaptyn Service. For this reason, you should always feel no obligation to tip your Kaptyn Driver or any other Kaptyn personnel.
Cancellation Fee. After requesting a ride you may cancel it through The Kaptyn Platform, and in certain cases a cancellation fee may apply. You will also be charged if you fail to show up at your pre-determined pick-up location after requesting a ride.
Damage Fee. If a Driver reports that you have materially damaged an Kaptyn vehicle, you agree to pay a “Damage Fee” of up to $250 depending on the extent of the damage (as determined by Kaptyn in its sole discretion), towards vehicle repair or cleaning. Kaptyn reserves the right (but is not obligated) to verify or otherwise require documentation of damages prior to processing the Damage Fee.
Facilitation of Charges. All Charges are facilitated through a third-party payment processing service called Stripe, Inc. Kaptyn may change or replace its third-party payment processing services without notice to you. Charges shall only be made through The Kaptyn Platform. Cash payments for the Charges are strictly prohibited.
No Refunds. All Charges are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of The Kaptyn Platform, any disruption to The Kaptyn Platform or Services, or any other reason whatsoever. Notwithstanding the foregoing, Kaptyn may, in its sole discretion, issue any credits or refunds.
Coupons. Kaptyn may from time to time provide certain Riders with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Fares applied to you. You may receive coupons that you can apply toward payment of certain Fares upon completion of a ride. Coupons are only valid for use on The Kaptyn Platform, and are not transferable or redeemable for cash except as required by law. Coupons cannot be combined, and if the cost of your ride exceeds the applicable credit or discount value we will charge your payment method on file for the outstanding cost of the ride. We may also charge the amount attributable to the Service Fee, Damage Fee, or Other Charges before application of the coupon. Additional restrictions on coupons may apply as communicated to you in a relevant promotion.
Credit Card Authorization. Upon addition of a new payment method or each ride request, Kaptyn may seek authorization of your selected payment method to verify the payment method, ensure the ride cost will be covered, and protect against unauthorized behavior. The authorization is not a charge, however, it may reduce your available credit by the authorization amount until your bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or prepaid card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank. We can’t control the above charges of the above third parties, and we encourage you to read their policies before deciding whether to add and/or use a new payment method.
Receipt. Within a reasonable time following the completion of a ride, through electronic mail or text message, Kaptyn will submit a receipt to the Rider who requested the ride which shall include without limitation: (1) the origin and destination of the ride; (2) the total time and distance; and (3) an itemization of the total of the fare paid, if any. If the ride is canceled, Kaptyn will submit a receipt to the Rider which shall include without limitation an itemization of the total of the fare, fees or cancelation fees, if any.
V. Kaptyn Communications
By accessing The Kaptyn Platform, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Kaptyn, its affiliated companies and/or our Drivers, may include but are not limited to: operational communications concerning your Rider Account or use of The Kaptyn Platform or our Services, updates concerning new and existing features on The Kaptyn Platform, communications concerning promotions run by us or our third-party partners, and news concerning Kaptyn and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE KAPTYN PLATFORM OR THE SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM KAPTYN (INCLUDING OPERATIONAL TEXTS OR CALLS), YOU CAN EMAIL email@example.com STATING YOUR REQUEST TO UNSUBSCRIBE FROM TEXTS OR CALLS FROM KAPTYN AND INCLUDING THE TELEPHONE NUMBER TO WHICH YOU DESIRE YOUR REQUEST TO APPLY, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE KAPTYN PLATFORM OR THE SERVICES.
VI. Your Information
VII. Promotions and Referral Programs
Kaptyn, at its sole discretion, may make available promotions with different features to any Riders or prospective Riders. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Kaptyn. Kaptyn reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that Kaptyn determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement.
From time to time, Kaptyn may offer you with incentives to refer your friends and family to become new Riders of The Kaptyn Platform (the “Referral Program”). These incentives may come in the form of Kaptyn Credits or any other form as Kaptyn deems appropriate. Kaptyn may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in its sole discretion. Your distribution of Kaptyn Codes and participation in the Referral Program is subject to this Agreement and the Referral Program Rules.
VIII. Code of Conduct for Riders and Guests of Riders
Failure to comply with this Code of Conduct by any Rider or guest of a Rider may result in termination of the applicable Rider’s subscription. Riders are responsible for ensuring that any and all guests a Rider invites into an Kaptyn vehicle are aware of and comply with this Code of Conduct at all times.
For safety reasons, all Riders and guests of Riders must fasten their seatbelt upon entering an Kaptyn vehicle and keep their seatbelt securely fastened at all times until their trip is completed as required by law. As required by law, the Rider is responsible to properly fasten children within a “child seat” and to keep such children securely fastened within such “child seat” at all times during an Kaptyn trip. With respect to your use of The Kaptyn Platform and the Services, you agree that you will not:
violate any law, statute, rule, permit, ordinance or regulation;
stalk, threaten, or otherwise harass any person, or carry any weapons;
impersonate any person or entity;
post Information or interact on The Kaptyn Platform or Services in a manner which is fraudulent, libelous, abusive, obscene, profane, sexually oriented, harassing, or illegal;
use The Kaptyn Platform in any way that infringes any third party’s rights, including: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
interfere with or disrupt The Kaptyn Platform or the servers or networks connected to The Kaptyn Platform;
post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through The Kaptyn Platform;
“frame” or “mirror” any part of The Kaptyn Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other web site for any purpose;
modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of The Kaptyn Platform or any software used on or for The Kaptyn Platform;
rent, lease, lend, sell, redistribute, license or sublicense The Kaptyn Platform or access to any portion of The Kaptyn Platform;
use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of The Kaptyn Platform or its contents;
transfer or sell your Rider Account, password and/or identification to any other party;
discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation; or
cause any third party to engage in the restricted activities above.
Kaptyn has a non-discrimination policy that prohibits a Driver from: (1) discriminating on the basis of a Rider’s or potential Rider’s location or destination, race, color, national origin, religious belief or affiliation, sex, disability, or age; and (2) refusing to provide Service to a potential Rider with a service animal.
X. Intellectual Property
All intellectual property rights in The Kaptyn Platform, as between you and Kaptyn, shall be owned by Kaptyn absolutely and in their entirety. These rights include database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same.
You acknowledge that you have no intellectual property rights whatsoever in our security recordings from our vehicles. Such security recordings are the sole property of Kaptyn, and you shall have no license or other right to access or use the same for any purposes without our express prior written consent. You further acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of Kaptyn. Kaptyn shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Kaptyn and other Kaptyn logos, designs, graphics, icons, scripts and service names are or will be registered trademarks, trademarks or trade dress of Kaptyn in the United States (collectively, the “Kaptyn Marks”). You acknowledge that Kaptyn is the owner of the Kaptyn Marks, including all goodwill associated therewith, and you shall have no license or other right to use the same for any purposes without our express prior written consent.
You agree that you will not:
(1) create any materials that use the Kaptyn Marks or any derivatives of the Kaptyn Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by Kaptyn in writing; (2) use the Kaptyn Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Kaptyn Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair Kaptyn’s rights as owner of the Kaptyn Marks or the legality and/or enforceability of the Kaptyn Marks, including, challenging or opposing Kaptyn’s ownership in the Kaptyn Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Kaptyn Marks, any derivative of the Kaptyn Marks, any combination of the Kaptyn Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Kaptyn Marks; or (5) use the Kaptyn Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Kaptyn respects the intellectual property rights of others. If you believe, in good faith, that any material on The Kaptyn Platform infringe on your copyrights, please to file a complaint.
XI. Zero Tolerance Policy
Kaptyn has a zero tolerance policy regarding the use of alcohol or drugs by its Drivers providing Services. If you believe your Driver may be under the influence of drugs or alcohol, please have the Driver END THE TRIP IMMEDIATELY. After the Driver has ended the trip, please report the incident to us immediately at firstname.lastname@example.org.
The following disclaimers are made on behalf of Kaptyn, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
By using The Kaptyn Platform and/or our Services, you acknowledge and agree that such use is at your own risk. Kaptyn is responsible only for transportation of its own vehicles in accordance with applicable tariffs and limitations and assumes no responsibility for any acts or omissions of others, except as imposed by law. Unless caused by its own negligence or that of its employees, Kaptyn shall not be liable for loss, damage, or delay caused by (1) any action or inaction by a Rider or guest of a Rider, (2) the nature of the property or defect, (3) weather delays, (4) an act of God, public enemies or terroristic activity, (5) bad conditions of roads or (6) any other causes beyond Kaptyn’s control.
The Kaptyn Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of The Kaptyn Platform and/or the Services, including the ability to provide or receive Services at any given location or time. To the fullest extent permitted by law, we specifically disclaim any express or implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties. In such cases, Kaptyn’s liability will be limited to the fullest extent permitted by applicable law.
We do not warrant that your use of The Kaptyn Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error-free, or will meet your requirements, that any defects in The Kaptyn Platform will be corrected, or that The Kaptyn Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of The Kaptyn Platform or Services.
Please use common sense when using The Kaptyn Platform and Services, including looking at the photos of the Driver you have matched with to make sure it is the same individual you see in person. We encourage you to communicate directly with each potential Driver prior to engaging in an arranged transportation service.
Please note that we do not accept responsibility or liability for any content, communication or other use or access of The Kaptyn Platform by persons under the age of eighteen (18) in violation of this Agreement.
Kaptyn is not responsible for the conduct, whether online or offline, of any Rider of The Kaptyn Platform or Services. You are solely responsible for your interactions with other Riders. We are not responsible for personal belongings left in an Kaptyn Vehicle by Riders. By using The Kaptyn Platform and participating in the Services, you agree to accept such risks and agree that Kaptyn is not responsible for the acts or omissions of Riders on The Kaptyn Platform or participating in the Services.
You are responsible for the use of your Rider profile and Kaptyn expressly disclaims any liability arising from the unauthorized use of your Rider profile. Should you suspect that any unauthorized party may be using your Rider profile or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through The Kaptyn Platform (including any profile information you provide), send to other Riders, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Riders on The Kaptyn Platform or through the Services. Please carefully select the type of information that you post on The Kaptyn Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Riders (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content concerning Kaptyn or made available through The Kaptyn Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on The Kaptyn Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on The Kaptyn Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Riders or others.
Location data provided by The Kaptyn Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Kaptyn, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by The Kaptyn Platform. Any of your Information, including geolocational data, you upload, provide, or post on The Kaptyn Platform may be accessible to Kaptyn and certain Riders of The Kaptyn Platform.
Kaptyn advises you to use The Kaptyn Platform with a data plan with unlimited or very high data usage limits, and Kaptyn shall not responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access The Kaptyn Platform.
You will defend, indemnify, and hold Kaptyn including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your and your guests’ use of The Kaptyn Platform and participation in the Services, including but not limited to: (1) your or your guests’ breach of this Agreement or the documents it incorporates by reference; (2) your or your guests’ violation of any law or the rights of an Kaptyn Driver or a third party, including Riders, guests of Riders, other motorists, and pedestrians, as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through The Kaptyn Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (4) any other activities in connection with the Services; in each case, except to the extent such claims, actions, suits, losses, costs, liabilities and expenses relate to or arise out of Kaptyn’s own negligence or willful misconduct.
XIV. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (i) YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT WILL KAPTYN, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “KAPTYN” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE KAPTYN PLATFORM, SERVICE INTERRUPTIONS, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, STATEMENTS OR CONDUCT OF ANY THIRD PARTY REGARDING THE SERVICES, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE KAPTYN PLATFORM, THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING, REGARDLESS OF LEGAL THEORY, WHETHER BASED ON TORT, STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY OR ANY OTHER LEGAL THEORY, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT KAPTYN HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS OR OTHER SERVICES PROVIDED TO YOU OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO KAPTYN DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM FOR THE SERVICES, BUT IN NO EVENT GREATER THAN FIVE thousand DOLLARS ($5,000.00). To the Extent that foregoing EXCLUSION OF OR THE LIMITATION OF Kaptyn’s MAXIMUM AGGREGATE LIABILITY, is in violation of the law IN certain STATES OR JURISDICTIONS, Kaptyn’s MAXIMUM AGGREGATE LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES OR JURISDICTIONS. The Essential purpose of this provision is to limit the potential liability of Kaptyn arising out of this agreement whether for breach of contract, negligence, or otherwise. these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy. THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW. THIS PROVISION SHALL HAVE NO EFFECT ON Kaptyn’s CHOICE OF LAW PROVISION SET FORTH BELOW.
Kaptyn is a subscription-based transportation service. After you create your Rider Account, the Monthly Subscription Fee will automatically renew each month using the same payment information you provided to us. We reserve the right to cancel your subscription or suspend you Rider Account if we are unable to successfully charge your payment method to renew your Monthly Subscription Fee. You may cancel your Rider Account at any time upon your request in writing to us, but you will not receive a refund or credit for any subscription for which you have paid. However, you will continue to have access to the Services until the date that your paid subscription expires, unless your Rider Account is earlier suspended or terminated by us in accordance with this Agreement.
You acknowledge and agree that we may suspend or terminate your Rider Account and/or deny you access to, use of, all or part of the Services, without prior notice, and you will remain liable for all amounts owed by you up to and including the date of termination, if you engage in any conduct that we believe, in our sole discretion: (i) violates any term or provision of this Agreement, (ii) violates the rights of Kaptyn or third parties, (iii) or is otherwise inappropriate for continued access and use of the Services. Unless otherwise expressly agreed in writing, you agree that upon termination, either by you or us, we may delete all Information related to your account and may bar your access to your account and the Services. Further, you agree that we shall not be liable to you or any third-party for any termination of your access to the Services. Sections VI, IX, XI, XII, XIII, XIV, XV, XVI and XVII shall survive any termination or expiration of this Agreement.
XVI. DISPUTE RESOLUTION AND AGREEMENT TO ARBITRATE
(a) Agreement to Binding Arbitration Between You and Kaptyn.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND KAPTYN. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), The Kaptyn Platform, the Services, any other goods or services made available through The Kaptyn Platform, your relationship with Kaptyn, the threatened or actual suspension, deactivation or termination of your Rider Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Kaptyn, trade secrets, unfair competition, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND KAPTYN ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
(b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND KAPTYN MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND KAPTYN BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING.
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims.
Notwithstanding any other provision of this Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining claims and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(c) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Kaptyn will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Riders, but is bound by rulings in prior arbitrations involving the same Rider to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
(d) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
If you initiate arbitration under this Arbitration Agreement after participating in the optional Negotiation process described in subsection (h) below and are otherwise required to pay a filing fee under the relevant AAA Rules, Kaptyn agrees that, unless your claim is for $5,000 or more, your share of the filing and arbitration fees is limited to $50, and that, after you submit proof of payment of the filing fee to Kaptyn, Kaptyn will promptly reimburse you for all but $50 of the filing fee. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules.
If Kaptyn initiates arbitration under this Arbitration Agreement, Kaptyn will pay all AAA filing and arbitration fees.
Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Although under some laws Kaptyn may have a right to an award of attorneys' fees and non-filing fee expenses if it prevails in an arbitration, Kaptyn agrees that it will not seek such an award.
If the arbitrator issues you an award that is greater than the value of Kaptyn’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (h) below, then Kaptyn will pay you the amount of the award or U.S. $1,000, whichever is greater.
(e) Location and Manner of Arbitration.
Unless you and Kaptyn agree otherwise, any arbitration hearings between Kaptyn and a Rider will take place in the State of Nevada. If your Claim is for $10,000 or less, Kaptyn agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(f) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; and (2) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Securities Exchange Commission, Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration. However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in subsection (b) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(h) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and Kaptyn may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and Kaptyn. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Kaptyn’s business, operations and properties, information made available to you in connection with your use of the Platform, which may include a Driver’s name, pick-up location, contact information and photo (“Confidential Information”) disclosed to you by Kaptyn for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Kaptyn in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Kaptyn with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Kaptyn or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Kaptyn; becomes known to you, without restriction, from a source other than Kaptyn without breach of this Agreement by you and otherwise not in violation of Kaptyn’s rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to Kaptyn to enable Kaptyn to seek a protective order or otherwise prevent or restrict such disclosure.
Except as provided in Section XV, this Agreement shall be governed by the laws of the State of Nevada without regard to choice of law principles. This choice of law provision is only intended to specify the use of Nevada law to interpret this Agreement and is not intended to create any other substantive right to non-Nevadans to assert claims under Nevada law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non- binding, the parties shall remain bound by all other provisions of this Agreement. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by Kaptyn, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to Kaptyn shall be given by certified mail, postage prepaid and return receipt requested to Kaptyn Nevada, LLC., [Corporate Address]. Any notices to you shall be provided to you through The Kaptyn Platform or given to you via the email address or physical you provide to Kaptyn during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. The words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and Kaptyn with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding this Agreement, The Kaptyn Platform or our Services, please contact us at:
Kaptyn Nevada, LLC.