Terms & Conditions
The Kapture™ Mobile App and Service
You may download the Mobile App and register to use Kapture via the iTunes store located on your iPhone. Kapture allows you to capture photographs with your iPhone and upload such photographs directly to your Facebook Timeline, Twitter Feed or other applicable social networking site. You must have a valid Facebook account in order to capture a photograph, and use the Mobile App. In addition, The Company contracts with various businesses (each a "Vendor") offering opportunities for Kapture users to (i) photograph a specified feature of such Vendor's establishment and / or products or services provided by such Vendor (ii) upload the photograph to the user's Facebook Timeline, Twitter Feed or other social networking site, in exchange for the receipt of a reward, such as a free drink or other small incentive prize (collectively, "Rewards"). Upon downloading Kapture, you will be provided the ability to access a list of Vendors currently offering photo opportunities, which will include the applicable Rewards being offered in connection therewith and the applicable dates during which such Rewards are available. If you choose to participate in a photo opportunity offered by a Vendor, the "Kaptured photo" will be uploaded and displayed on your Facebook Timeline, Twitter Feed or other applicable social networking site within an electronic paper border and will be watermarked with the name and/or logo of the applicable Vendor. The Vendors and the applicable Rewards are subject to change at any time without notice to you.
If you choose to download the Mobile App, the Company hereby grants you a personal, limited, revocable, non-transferable license to access and use the Mobile App and Kapture for your personal and non-commercial purposes. Except as expressly permitted in this Agreement or by applicable law, you may not copy, decompile, reverse engineer, disassemble, otherwise attempt to derive source code from, modify or create derivative works of, the Mobile App or any part thereof. The Mobile App is for your use only. You may not rent, lease, lend, redistribute, sublicense or transfer the Mobile App. In addition, you may not use the Mobile App in any manner that may impair, overburden, damage, disable or otherwise compromise (i) the Kapture service; (ii) any other party's use and enjoyment of the Kapture service; or (iii) the services and products of any third parties.
Except as expressly permitted in this Agreement or by applicable law, you may not copy, decompile, reverse engineer, disassemble, otherwise attempt to derive source code from, modify or create derivative works of, the Application or any part thereof. The Application is for your use only. You may not rent, lease, lend, redistribute, sublicense or transfer the Application. In addition, you may not use the Application in any manner that may impair, overburden, damage, disable or otherwise compromise (i) the Service; (ii) any other party's use and enjoyment of the Service; or (iii) the services and products of any third parties.
Availability of Rewards
YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY SHALL NOT BE RESPONSIBLE FOR THE FULFILLMENT, THE FAILURE BY ANY VENDOR TO FULFILL, OR THE AVAILABILITY OR UNAVAILABILITY OF ANY REWARDS LISTED AS BEING OFFERED BY ANY VENDOR ON KAPTURE OR THE SITE.
As between you and the Company, you shall own and retain ownership of all rights, title and interest in and to any and all photographs (other than any Vendor name and/or logo displayed thereon), comments, information or other materials posted to Facebook, Twitter or other applicable social networking sites via Kapture (collectively, "Uploaded Content"). By submitting such Uploaded Content via Kapture, you agree that you hereby grant to the Company a perpetual, irrevocable, worldwide, royalty-free, fully transferable and sublicenseable right and license to use, copy, store, modify, create derivative works based on, and transmit such Uploaded Content, in any manner or media, in connection with the operation, marketing and/or promotion of the Company and/or the applicable Vendor, without any attribution, compensation or royalties to you. In addition, as a user of Kapture, you acknowledge that you are responsible for the Uploaded Content you submit through Kapture, and that you, and not the Company, will bear full responsibility for each item of Uploaded Content, including its legality, reliability, appropriateness, originality and copyright.
Without limiting the foregoing: You hereby represent and warrant that (i) you own all rights, title and interest in and to the Uploaded Content, and/or possess all rights necessary to grant to the Company the rights and licenses granted by you hereunder; (ii) the posting of any Uploaded Content via Kapture will not breach any agreement to which you are bound; and (iii) the Uploaded Content is and will be your original creation.
Facebook, Twitter and/or Other Social Networking Sites
You agree not to upload or transmit via Kapture any information which: (i) infringes or otherwise violates any copyright, patent, trademark, trade secret or other proprietary right; (ii) is defamatory, libelous, expresses hate, or is unlawfully threatening; (iii) is pornographic, obscene or exploitative of a minor; (iv) contains or embodies a virus, worm, Trojan horse or other contaminating or destructive feature; (v) relates to any illegal contests, pyramid schemes, sweepstakes or chain letters; or (vi) otherwise violates any applicable treaty, law or regulation.
You agree you will not interfere, in any way, with others' use of or access to the Site or Kapture and will not attempt to gain unauthorized access to the computer system of any other user. You further agree not to take any other action in connection with your use of the Site or Kapture which violates any local, state, national or international law, rule, regulation or order of any court in conjunction with your use of the Site or Kapture.
You agree to access the Site through a web browser. You further agree that you will not use any robot, spider or other automatic device, manual process or application or data mining or extraction tool to access, monitor, copy or use the Site. You also agree not to take any other action that imposes an unreasonable or disproportionately large load on the Site or Kapture.
Except as expressly provided herein, you may not use, download, upload, reproduce, copy, duplicate, print, display, perform, republish, sell, license, post, transmit, disseminate, redeliver using "framing technology," otherwise distribute, or commercially exploit in any way, the Site or any portion thereof, or any information or content on the Site, without the prior written permission of the Company.
Unauthorized Use of the Site and/or Mobile App
Trademarks and Copyrights
KAPTURE, KAPTURE LIFE, KAPTU.RE, Kapture's logo and other marks displayed on our Site and/or Kapture are the proprietary service marks or trademarks of the Company or third parties. The Company's marks may not be used in connection with any product or service that is not The Company's, in any manner that is likely to cause confusion among consumers, or to disparage or discredit The Company. All other trademarks and service marks not owned by the Company that appear on this Site or Kapture are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by The Company. You may not use, copy, modify or display any of the trademarks, service marks, names or logos appearing on the Site or Kapture without the express written permission of the respective owner thereof.
All content on this Site or viewable through the Mobile App, including, but not limited to, works of authorship, software, design, text, graphics, photos, logos, button icons, images, video demos, lists and data compilations; any improvements or modifications to such content; any derivative works based thereon; and the collection, arrangement and assembly of all content on this Site and Kapture, are the property of the Company or its licensors and are protected by United States and international copyright and other intellectual property laws.
In compliance with the Children's Online Privacy Protection Act, 15 U.S.C. §§ 6501-06 and 16 C.F.R. §§ 312.1-312.12, we do not permit children under 13 years of age to become registered users of the Site. By using the Site and/or Kapture, you represent that you are not under 13 years of age. Notwithstanding the foregoing, certain Rewards offered by Vendors via Kapture are available only to individuals who are over a certain age (e.g., over 21 years of age, etc.). You agree to comply with all rules and restrictions in connection with any Rewards.
Third Party Advertisements and Links to Third Party Sites
You acknowledge that, at any time, the Company may provide links to the websites of third parties via the Site and/or the Mobile App. Additionally, the Site and/or the Mobile App may display advertisements from third parties, such as banner advertisements and pop-up texts, and links to the sites of such advertisers. The Company is not responsible for the content of such advertisements or any links, or any products, services or other materials relating to such advertisements, any linked site, or any link contained in a linked site. The display of any advertisement or link does not imply endorsement by the Company of the advertisement or linked site or any content therein. IN NO EVENT WILL THE COMPANY BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO ANY USE, CONTINUED USE OR RELIANCE ON ANY ADVERTISEMENT DISPLAYED ON THE SITE OR MOBILE APP, OR ANY PRODUCTS, SERVICES OR OTHER MATERIALS RELATING TO ANY SUCH ADVERTISEMENT, ANY LINKED THIRD PARTY SITE, OR ANY LINK CONTAINED IN A LINKED SITE.
Disclaimer of Warranties
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE, THE MOBILE APP AND KAPTURE, OR ANY INFORMATION, CONTENT, SERVICES AND MATERIALS CONTAINED IN, ACCESSED VIA, OR DESCRIBED ON THE SITE, MOBILE APP OR KAPTURE, IS AT YOUR OWN RISK, AND THAT ALL SUCH INFORMATION, CONTENT, SERVICES AND MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, THE COMPANY MAKES NO, AND HEREBY DISCLAIMS ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE AVAILABILITY, OPERATION AND USE OF THE SITE, MOBILE APP OR KAPTURE, OR ANY INFORMATION, CONTENT, MATERIALS OR SERVICES ON OR ACCESSED VIA THE SITE, THE MOBILE APP OR KAPTURE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE SITE, MOBILE APP OR KAPTURE IS ACCURATE, COMPLETE OR CURRENT (INCLUDING THE CURRENCY OF THE LIST OF AVAILABLE REWARD OFFERINGS), AND THE COMPANY IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS THEREIN OR FOR ANY ADVERSE CONSEQUENCES RESULTING FROM YOUR RELIANCE ON SUCH INFORMATION OR ANY OTHER ASPECT OF THE SITE, MOBILE APP OR KAPTURE. FURTHER, THE COMPANY MAKES NO REPRESENTATIONS AND WARRANTIES THAT THE SITE OR KAPTURE WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS.
Limitation of Liability
IN NO EVENT SHALL THE COMPANY OR ANY OF ITS AFFILIATES, OR THE MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF THE COMPANY OR ANY OF ITS AFFILIATES (COLLECTIVELY, THE "KAPTURE PARTIES") BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES OF ANY KIND ARISING OUT OF THE USE OF, ACCESS TO, RELIANCE ON, INABILITY TO USE OR IMPROPER USE OF THE SITE, MOBILE APP, KAPTURE, OR ANY INFORMATION, CONTENT, MATERIALS OR SERVICES AVAILABLE THEREON (INCLUDING ANY PHYSICAL HARM OR INJURY TO YOU RESULTING FROM YOUR PARTICIPATION IN ANY OPPORTUNITY TO RECEIVE A REWARD FROM A VENDOR), INCLUDING, BUT NOT LIMITED TO, ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOODWILL OR REVENUE, BUSINESS INTERRUPTION, OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE.
CERTAIN STATE LAWS DO NOT PERMIT LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, AND THUS SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS ABOVE MAY NOT APPLY TO YOU.
Modification or Discontinuance of the Site or Kapture
At any time, without notice to you, and for any or no reason, the Company may modify or discontinue the Site, Mobile App or Kapture or any content thereof. The Company shall in no way be held liable for any consequence which results from the Company's decision to modify or discontinue providing the Site or Kapture or any content thereof.
Denial of Access
The Company may prohibit you from using or accessing the Site or Kapture, in whole or in part, for any or no reason, at any time, in its sole discretion, without notice to you.
Notice and Procedure for Making Claims of Intellectual Property Infringement
The Company respects the intellectual property rights of others. If you believe that any content on this Site or Kapture may infringe your copyrights or other intellectual property rights, please provide the Company the written information specified below. Please note that this procedure is exclusively for notifying the Company that your intellectual property rights have been infringed.
An electronic or physical signature of the person authorized to act on behalf of the owner of the intellectual property interest;
A description of the intellectual property right that you claim has been infringed;
A description of where the material that you claim is infringing is located on the Site or Kapture;
Your address, telephone number, and e-mail address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the intellectual property owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the intellectual property owner or authorized to act on the intellectual property owner's behalf.
The Company's agent for notice of claims of copyright infringement or other intellectual property infringement on the Site or Kapture can be reached as follows:
Dustin P. Branch
Katten Muchin Rosenman LLP
2029 Century Park East, Suite 2600
Los Angeles, California 90067