Kolu Terms of Service
The Effective Date of these Terms of Service is July 25 , 2017.
PLEASE NOTE THAT THESE TERMS OF SERVICE CONTAIN A CLASS ACTION WAIVER THAT APPLIES TO ALL KOLU USERS. BY ACCEPTING THESE TERMS OF SERVICE, YOU AGREE TO BE BOUND BY THIS CLASS ACTION WAIVER.
TERMS OF AGREEMENT
These Terms of Service constitute a legally binding agreement between you (“you” or the “User”) and Kolu governing your access to and use of the Kolu website, including any subdomains thereof, and any other websites through which Kolu makes the Kolu services available (collectively, “Site”), our mobile, tablet and other smart device applications, and application program interfaces (collectively, “Application”) and all associated services. The Site, Application, and associated services together are collectively referred to as the “Kolu Platform.”
Kolu has the right to modify, change, remove or add to the Terms of Service at any time. Modifications to the Terms of Service may be posted on the Kolu Platform, without other written, verbal, or electronic communication. Your continued use of the Kolu Platform after the posting of changes constitutes your binding acceptance of such changes. The current version of the Terms of Service shall supersede all previous versions.
You must register an account (“Kolu Account”) in order to access certain features of the Kolu Platform. You can register for a Kolu Account by using an email address and creating a password through the registration process. Alternatively, you may be permitted to register and/or login to the Kolu Platform using your Facebook, Instagram, or other social media platform credentials, as may be approved by Kolu. Usernames may also be used for your online login and/or profile. Your date of birth may be required for age verification. You are responsible for keeping your username and password confidential. You are responsible for all activities (whether by you or by others) that occur under your password, username, and account. You agree to notify us immediately of any unauthorized uses of your account or any other breach of security. You may not register more than one (1) Kolu Account, unless Kolu grants you such permission. You may not assign or transfer your Kolu Account to a third party. Kolu cannot and will not be liable for any loss or damage arising from your failure to keep your account information protected.
ABOUT THIS SERVICE
The Kolu Platform is an online forum linking travelers (“Travelers”) with local guides (“Guides”) who offer personalized tours. The Kolu Platform allows for a completely tailored experience based on the User’s personality and travel interests. Customized content is then matched based on location, and your selected interests. Selecting travel interests allow the Kolu Platform to identify your travel style. You may then select and communicate with an experienced Guide, who can share some of the target area’s best kept secrets and the Guide’s personal experiences to create a customized tour experience.
TERMS SPECIFIC FOR GUIDES
All Guides are independent contractors, not employees of Kolu. When applicable, Guides must fully educate and inform Travelers of any inherent risks or any requirements for participation, including but not limited to minimum age, proficiency, or fitness level. Guides are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to their services. Guides may not participate in or facilitate any illegal activities while performing their contractual obligations. You represent and warrant that you (i) understand and comply with all laws, rules and regulations that may apply to your services, and (ii) will obtain any required licenses, permits, or registrations prior to providing any services. All Guides must read, agree to, and execute Independent Contractor Agreements as part of their registration process. All terms and definitions contained therein apply to all Guide services and functions that they perform for any Travelers in connection with the Kolu Platform.
TERMS SPECIFIC FOR TRAVELERS
Travelers should carefully communicate with their Guides to ensure that they meet any minimum age, proficiency, fitness level, or other requirements for the planned activities. Travelers are required to inform Guides of any medical or physical conditions, or additional circumstances that may impact their ability to safely participate in an tour or activity facilitated by the Kolu Platform. Travelers are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply by participation in any activity facilitated through the Kolu Platform.
TERMS APPLICABLE TO BOTH GUIDES AND TRAVELERS
COMMITMENT TO CHILDREN’S PRIVACY
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, the Kolu Platform does not permit children under 13 years of age to become Users, and we do not collect information from children. By using the Kolu Platform, you represent that you are 13 years of age or older. If you are between 13 and 18 years of age (“Minors”), you can only use the Kolu Platform or any services facilitated by use of the Kolu Platform with the consent of a parent or lawful guardian. Only Minors accompanied by parents or lawful guardians may use the Kolu Platform to arrange guided tours or participate in any other services enabled by the Kolu Platform. Such accompanying parent or guardian bears full responsibility for the safety, conduct, liabilities, or other activities of the Minor. No personally identifying information regarding Minors shall be shared, except in ways that are necessary to deliver the services being arranged, and then only with express permission of the parent or lawful guardian.
INTELLECTUAL PROPERTY RIGHTS
The Kolu Platform and all materials available thereon, such as visual interfaces, graphics, design, compilation, information, computer code, software, services, User identities, and content, are the property of Kolu, its licensors, or its Users, and are protected by United States and international copyright, trademark, trade secret, and other intellectual property laws. You may not use the contents of the Kolu Platform in any manner or for any purpose that would constitute infringement of the intellectual property rights of Kolu, our licensors, or Users, including but not limited to (a) reproducing, modifying, translating, enhancing, decompiling, disassembling, reverse engineering, or creating derivative works based on content on the Kolu Platform; and (b) circumventing or disabling any security or technological features or measures of the Kolu Platform.
The following activities are expressly prohibited from the Kolu Platform:
a. Creating a username in violation of anyone's trade secret, copyright, or other intellectual property right.
b. Creating a username that contains offensive content. Offensive content may include, but is not limited to, obscene language, obscene references, threatening or harassing messages, or defamatory statements.
c. Engaging in any activity that compromises the Kolu Platform. Such activity may include, but is not limited to, hacking, IP attacks, worms, viruses, spamming, phishing, cancel bots, Trojan horses, and mail bombing, or crashing.
d. Engaging in any activity designed to impede the use of the Kolu Platform by other Users, including overloading and flooding.
e. Using the Kolu Platform in any way that could interfere with, disrupt, negatively affect or inhibit other uses from fully enjoying the Kolu Platform or that could damage, disable, overburden or impair the functioning of the Kolu Platform.
f. Framing or deep linking into the Kolu Platform.
g. Accessing the Kolu Platform by means of automated process, spiders, bots or similar device.
h. Posting any content that is abusive, threatening, obscene, defamatory, libelous or racially, sexually, religiously, or otherwise objectionable or offensive.
i. Using the Kolu Platform for any commercial use or purpose, unless expressly permitted by Kolu in writing; it being understood that the Kolu Platform and related services are intended for travel and entertainment use only.
j. Impersonating any person or entity, falsely claiming an affiliation with any person or entity, or accessing the Kolu Accounts of others without permission, or performing any other fraudulent activity.
k. Making unsolicited offers, advertisements, proposals, or sending junk mail or spam to other Users of the Kolu Platform (including, but not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures).
l. Posting, uploading, or linking to private information of any third party (e.g., addresses, phone numbers, email addresses, Social Security numbers, and credit card numbers).
USER SUSPENSION AND/OR TERMINATION
Kolu, in its sole discretion, for any or no reason, may suspend, cancel, or terminate the User’s right to access or use any part of the Kolu Platform, or refuse to post or remove a post at any time without notice. The User agrees that breach of any of the Terms of Service may result in the immediate termination of the User’s Kolu Account and/or give rise to civil action against the User. The disclaimers herein and all restrictions on the User regarding information downloaded or obtained from the Kolu Platform shall survive any cancellation or termination of the User’s right to use the Kolu Platform.
LINKS TO THIRD PARTY SITES
Any links to other websites not owned or operated by Kolu are provided solely as a convenience for the User. Kolu’s listing of any third party does not create a partnership or affiliation with the third party. Kolu’s listing of any third parties does not constitute sponsorship or endorsement of these third parties. The User shall make a competent consumer decision before purchasing goods or employing the services of any linked or listed third party. User hereby assumes all risk associated with obtaining goods or services from any third party, and releases and holds harmless Kolu from any claims or demands resulting from User’s transactions with third party sites.
NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Kolu Platform, you warrant to Kolu that you will not use the Kolu Platform for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Kolu Platform in any manner that could damage, disable, overburden, or impair the Kolu Platform, or interfere with any other party’s use and enjoyment of the Kolu Platform. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided through the Kolu Platform.
MATERIALS PROVIDED TO KOLU OR POSTED ON THE KOLU PLATFORM
Kolu does not claim ownership of the materials or ideas that you provide to Kolu (including feedback and suggestions), or post, upload, input, or submit to Kolu through your use of the Kolu Platform or its associated services (collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting your Submission, you are granting Kolu, its affiliated companies, and necessary sublicensees, an unlimited, irrevocable, worldwide, perpetual, sublicensable, and royalty-free license to use the Submissions for any purpose, including, without limitation, the rights to use the information in furtherance of any commercial purpose; to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, create derivative works, translate and reformat your Submission; and to publish your name in connection with your Submission.
No compensation will be paid to you with respect to Kolu’s use of your Submission. Kolu is under no obligation to post or use any Submission you may provide and may remove any Submission at any time, in Kolu’s sole discretion.
By posting, uploading, inputting, providing, or submitting your Submission, you represent and warrant that you own or otherwise control all of the rights to your Submission, including, without limitation, all the rights necessary for you to provide, post, upload, input, or submit the Submissions and grant the license above.
CLASS ACTION WAIVER – PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
You and Kolu acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration (note: arbitration is not a remedy under these Terms of Service), private attorney-general action, or any other representative proceeding to all disputes. Further, unless you and Kolu both agree in writing, any court having jurisdiction may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding.
If any court determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in federal court located in Kansas City, Missouri.
FEDERAL AND STATE LAWS
When using the Kolu Platform or when using any other media provided by Kolu, you must obey all applicable federal, state, and local laws or regulations. The Kolu Platform is operated from the United States. Any use of the Kolu Platform that violates any applicable laws or regulations will be grounds for discontinuing your rights to access the Kolu Platform.
THE INFORMATION INCLUDED IN OR AVAILABLE THROUGH THE KOLU PLATFORM. MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. KOLU AND/OR ITS LICENSORS MAY MAKE IMPROVEMENTS AND/OR CHANGES TO THE KOLU PLATFORM AT ANY TIME.
KOLU MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, PRODUCTS OR SERVICES OFFERED OR OBTAINED THROUGH THE KOLU PLATFORM. ALL SUCH INFORMATION, PRODUCTS OR SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. THIS INCLUDES ANY LISTING OF ANY THIRD PARTY GOODS OR SERVICE PROVIDER INCLUDED IN THE KOLU PLATFORM. ANY THIRD PARTY GOODS OR SERVICE PROVIDER IS SUPPLIED AS A CONVENIENCE TO THE USER AND LISTING DOES NOT CONSTITUTE SPONSORSHIP, AFFILIATION, PARTNERSHIP, OR ENDORSEMENT. KOLU AND/OR ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO ANY INFORMATION, PRODUCTS, AND SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
IN NO EVENT SHALL KOLU AND/OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE KOLU PLATFORM, WITH THE DELAY OR INABILITY TO USE THE KOLU PLATFORM OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE KOLU PLATFORM, OR OTHERWISE ARISING OUT OF THE USE OF THE KOLU PLATFORM, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF KOLU HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
KOLU’S LIABILITY TO ANY USER OF THE KOLU PLATFORM SHALL BE LIMITED TO THE FEES PAID BY SUCH USER TO KOLU FOR ANY PRODUCTS OR SERVICES DURING THE SIX (6) MONTHS PRIOR TO THE DATE SUCH CLAIM ALLEGEDLY AROSE.
You agree to indemnify Kolu and its affiliates, employees, agents, representatives and third party service providers, and defend and hold each of them harmless, from any and all claims, demands, actions, liability, fines, penalties and expenses, whether based on warranty, contract, negligence, strict liability or otherwise, that may arise from any of your acts through the use of the Kolu Platform. Such acts may include, but are not limited to: Submissions, unauthorized use of material obtained through the Kolu Platform, or breach of these Terms of Service.
To the maximum extent permitted by law, these Terms of Service are governed by the laws of the State of Missouri, and you hereby consent to the exclusive jurisdiction and venue of courts in Boone County, Missouri, in all disputes arising out of or relating to the use of the Kolu Platform, unless a different jurisdiction and venue is dictated by these Terms of Service.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Kolu as a result of these Terms of Service or use of the Kolu Platform.
Kolu’s performance of these Terms of Service is subject to existing laws and legal process, and nothing contained herein is in derogation of Kolu’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Kolu Platform, or information provided to or gathered by Kolu with respect to such use.
Unless otherwise specified herein, these Terms of Service constitute the entire agreement between the User and Kolu with respect to the Kolu Platform. They supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the User and Kolu with respect to the Kolu Platform.
If any part of these Terms of Service is determined to be invalid or unenforceable pursuant to applicable laws or regulations including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms of Service shall continue in effect.