Please read these Terms of Service carefully as they contain important information about your legal rights, remedies and obligations. By accessing or using the Kytewall Platform, you agree to comply with and be bound by these Terms of Service.
Last Updated: March 20, 2018
Thank you for using Kytewall!
These Terms of Service ("Terms") constitute a legally binding agreement ("Agreement") between you and Kytewall (as defined below) governing your access to and use of the Kytewall website, including any subdomains thereof, and any other websites through which Kytewall makes the Kytewall Services available (collectively, "Site"), our mobile, tablet and other smart device applications, and application program interfaces (collectively, "Application") and all associated services (collectively, "Kytewall Services"). The Site, Application and Kytewall Services together are hereinafter collectively referred to as the “Kytewall Platform”.
When these Terms mention “Kytewall,” “we,” “us,” or “our,” it refers to the Kytewall company you are contracting with.
· If you reside in the United States, you are contracting with Kytewall LLC, 700 Lavaca St Suite 1401, Austin, TX 78701.
Mentors alone are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to their Listings and Mentor Services. For example, some cities have laws that restrict their ability to mentor mentees for short periods or provide certain Mentor Services. In many cities, Mentors may have to register, get a permit or obtain a license before preparing food or serving alcohol for sale. Some cities may require a license to guide tours or to sail. Mentor are alone responsible for identifying and obtaining any required licenses, permits, or registrations for any Mentor Services they offer. Certain types of Mentor Services may be prohibited altogether. Penalties may include fines or other enforcement. If you have questions about how local laws apply to your Listing(s) and Mentor Service(s) on Kytewall, you should always seek legal guidance.
Table of Contents
1. Scope of Kytewall Services
2. Eligibility, Using the Kytewall Platform, Member Verification
3. Modification of these Terms
4. Account Registration
6. Service Fees
7. Terms specific for Mentors
8. Terms specific for Mentees
9. Booking Modifications, Cancellations and Refunds, Resolution Center
10. Ratings and Reviews
11. Rounding off, Currency conversion
13. Prohibited Activities
14. Term and Termination, Suspension and other Measures
18. Dispute Resolution
20. Applicable Law and Jurisdiction
21. General Provisions
1.1 The Kytewall Platform is an online marketplace that enables registered users (“Members”) and certain third parties who offer services (Members and third parties who offer services are “Mentors” and the services they offer are “Mentor Services”) to publish such Mentor Services on the Kytewall Platform (“Listings”) and to communicate and transact directly with Members that are seeking to book such Mentor Services (Members using Mentor Services are “Mentees”). Mentor Services may include the offering of vacation or other properties for use ("Mentorships"), single or multi-day activities in various categories (“Experiences”), access to unique events and locations (“Events”), and a variety of other connecting and non-connecting
1.2 As the provider of the Kytewall Platform, Kytewall does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Listings or Mentor Services. Mentors alone are responsible for their Listings and Mentor Services. When Members make or accept a booking, they are entering into a contract directly with each other. Kytewall is not and does not become a party to or other participant in any contractual relationship between Members, nor is Kytewall a broker or insurer. Kytewall is not acting as an agent in any capacity for any Member.
1.3 While we may help facilitate the resolution of disputes, Kytewall has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Listings or Mentor Services, (ii) the truth or accuracy of any Listing descriptions, Ratings, Reviews, or other Member Content (as defined below), or (iii) the performance or conduct of any Member or third party. Kytewall does not endorse any Member, Listing or Mentor Services. Any references to a Member being "verified" (or similar language) only indicate that the Member has completed a relevant verification or identification process and nothing else. Any such description is not an endorsement, certification or guarantee by Kytewall about any Member, including of the Member's identity or background or whether the Member is trustworthy, safe or suitable. You should always exercise due diligence and care when deciding whether to egangement in an Mentorship, participate in an Experience or Event or use other Mentor Services, accept a booking request from a Mentee, or communicate and interact with other Members, whether online or in person. Verified Images (as defined below) are intended only to indicate a photographic representation of a Listing at the time the photograph was taken, and are therefore not an endorsement by Kytewall of any Mentor or Listing.
1.4 If you choose to use the Kytewall Platform as a Mentor or Co-Mentor (as defined below), your relationship with Kytewall is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of Kytewall for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Kytewall.
1.5 To promote the Kytewall Platform and to increase the exposure of Listings to potential Mentees, Listings and other Member Content may be displayed on other websites, in applications, within emails, and in online and offline advertisements. To assist Members who speak different languages, Listings and other Member Content may be translated, in whole or in part, into other languages. Kytewall cannot guarantee the accuracy or quality of such translations and Members are responsible for reviewing and verifying the accuracy of such translations. The Kytewall Platform may contain translations powered by Google. Google disclaims all warranties related to the translations, express or implied, including any warranties of accuracy, reliability, and any implied warranties for merchantability, fitness for a particular purpose and noninfringement.
1.6 The Kytewall Platform may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Kytewall is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Kytewall of such Third-Party Services.
1.7 Due to the nature of the Internet, Kytewall cannot guarantee the continuous and uninterrupted availability and accessibility of the Kytewall Platform. Kytewall may restrict the availability of the Kytewall Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Kytewall Platform. Kytewall may improve, enhance and modify the Kytewall Platform and introduce new Kytewall Services from time to time.
2.1 You must be at least 18 years old and able to enter into legally binding contracts to access and use the Kytewall Platform or register an Kytewall Account. By accessing or using the Kytewall Platform you represent and warrant that you are 18 or older and have the legal capacity and authority to enter into a contract.
2.2 You will comply with any applicable export control laws in your local jurisdiction. You also represent and warrant that (i) neither you nor your Mentor Service(s) are located or take place in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
2.3 Kytewall may make the access to and use of the Kytewall Platform, or certain areas or features of the Kytewall Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, meeting Ratings or Reviews thresholds, or booking and cancellation history.
2.4 User verification on the Internet is difficult and we do not assume any responsibility for the confirmation of any Member’s identity. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to (i) ask Members to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds of Members, (ii) screen Members against third party databases or other sources and request reports from service providers, and (iii) where we have sufficient information to identify a Member, obtain reports from public records of criminal convictions or sex offender registrations or an equivalent version of background or registered sex offender checks in your local jurisdiction (if available).
2.5 The access to or use of certain areas and features of the Kytewall Platform may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the Kytewall Platform, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise.
2.6 If you access or download the Application from the Apple App Store, you agree to Apple’s Licensed Application End User License Agreement. Some areas of the Kytewall Platform implement Google Maps/Earth mapping services, including Google Maps API(s). Your use of Google Maps/Earth is subject to the Google Maps/Google Earth Additional Terms of Service.
Kytewall reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the Kytewall Platform and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of the modifications by email at least thirty (30) days before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the Kytewall Platform will constitute acceptance of the revised Terms.
4.1 You must register an account ("Kytewall Account") to access and use certain features of the Kytewall Platform, such as publishing or booking a Listing. If you are registering an Kytewall Account for a company or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.
4.2 You can register an Kytewall Account using an email address and creating a password, or through your account with certain third-party social networking services, such as LinkedIn, Google and Facebook.
4.3 You must provide accurate, current and complete information during the registration process and keep your Kytewall Account and public Kytewall Account profile page information up-to-date at all times.
4.4 You may not register more than one (1) Kytewall Account unless Kytewall authorizes you to do so. You may not assign or otherwise transfer your Kytewall Account to another party.
4.5 You are responsible for maintaining the confidentiality and security of your Kytewall Account credentials and may not disclose your credentials to any third party. You must immediately notify Kytewall if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Kytewall Account. You are liable for any and all activities conducted through your Kytewall Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
5.1 Kytewall may, at its sole discretion, enable Members to (i) create, upload, post, send, receive and store content, such as text, photos, audio, video, or other materials and information on or through the Kytewall Platform ("Member Content"); and (ii) access and view Member Content and any content that Kytewall itself makes available on or through the Kytewall Platform, including proprietary Kytewall content and any content licensed or authorized for use by or through Kytewall from a third party ("Kytewall Content" and together with Member Content, "Collective Content").
5.2 The Kytewall Platform, Kytewall Content, and Member Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States. You acknowledge and agree that the Kytewall Platform and Kytewall Content, including all associated intellectual property rights, are the exclusive property of Kytewall and/or its licensors or authorizing third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Kytewall Platform, Kytewall Content or Member Content. All trademarks, service marks, logos, trade names, and any other source identifiers of Kytewall used on or in connection with the Kytewall Platform and Kytewall Content are trademarks or registered trademarks of Kytewall in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Kytewall Platform, Kytewall Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
5.3 You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Kytewall Platform or Collective Content, except to the extent you are the legal owner of certain Member Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Kytewall or its licensors, except for the licenses and rights expressly granted in these Terms.
5.4 Subject to your compliance with these Terms, Kytewall grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) download and use the Application on your personal device(s); and (ii) access and view any Collective Content made available on or through the Kytewall Platform and accessible to you, solely for your personal and non-commercial use.
5.5 By creating, uploading, posting, sending, receiving, storing, or otherwise making available any Member Content on or through the Kytewall Platform, you grant to Kytewall a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to such Member Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Member Content to provide and/or promote the Kytewall Platform, in any media or platform. Unless you provide specific consent, Kytewall does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use or exploit your Member Content.
5.6 You are solely responsible for all Member Content that you make available on or through the Kytewall Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available on or through the Kytewall Platform or you have all rights, licenses, consents and releases that are necessary to grant to Kytewall the rights in and to such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Kytewall's use of the Member Content (or any portion thereof) will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
5.7 You will not post, upload, publish, submit or transmit any Member Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person; (v) promotes illegal or harmful activities or substances; or (vi) violates Kytewall’s Content Policy or any other Kytewall policy. Kytewall may, without prior notice, remove or disable access to any Member Content that Kytewall finds to be in violation of these Terms or Kytewall’s then-current Policies or Standards, or otherwise may be harmful or objectionable to Kytewall, its Members, third parties, or property.
5.8 Kytewall respects copyright law and expects its Members to do the same. If you believe that any content on the Kytewall Platform infringes copyrights you own, please notify us in accordance with our Copyright Policy.
6.1 Kytewall may charge fees Mentees ("Mentee Fees") (collectively, "Service Fees") in consideration for the use of the Kytewall Platform.
6.2 Any applicable Service Fees (including any applicable Taxes) will be displayed to a Mentee at the time of booking a session/transaction. Kytewall reserves the right to change the Service Fees at any time, and we will provide Members adequate notice of any fee changes before they become effective.
6.3 The applicable Service Fees are due and payable and collected by Kytewall Payments at the time of booking a transaction. Except as otherwise provided on the Kytewall Platform, Service Fees are non-refundable.
7.1 Terms applicable to all Listings
7.1.1 When creating a Listing through the Kytewall Platform you must (i) provide complete and accurate information about your Mentor Service (such as listing description, location, and calendar availability), (ii) disclose any deficiencies, restrictions (such as house rules) and requirements that apply (such as any minimum age, proficiency or fitness requirements for an Experience) and (iii) provide any other pertinent information requested by Kytewall. You are responsible for keeping your Listing information (including calendar availability) up-to-date at all times.
7.1.2 You are solely responsible for setting a price (including any Taxes if applicable) for your Listing (“Listing Fee”). Once a Mentee requests a booking of your Listing, you may not request that the Mentee pays a higher price than in the booking request.
7.1.3 Any terms and conditions included in your Listing, in particular in relation to cancellations, must not conflict with these Terms or the cancellation policy you have selected for your Listing.
7.1.4 Pictures, animations or videos (collectively, "Images") used in your Listings must accurately reflect the quality and condition of your Mentor Services. Kytewall reserves the right to require that Listings have a minimum number of Images of a certain format, size and resolution.
7.1.5 The placement and ranking of Listings in search results on the Kytewall Platform may vary and depend on a variety of factors, such as Mentee search parameters and preferences, Mentor requirements, price and calendar availability, number and quality of Images, customer service and cancellation history, Reviews and Ratings, type of Mentor Service, and/or ease of booking.
7.1.6 When you accept or have pre-approved a booking request by a Mentee, you are entering into a legally binding agreement with the Mentee and are required to provide your Mentor Service(s) to the Mentee as described in your Listing when the booking request is made.
7.2 Listing Mentorships
7.2.1 You may only list one Mentorship account on Kytewall.
7.2.3 You represent and warrant that any Listing you post and the booking of, or a Mentee's engagement at, an Mentorship will (i) not breach any agreements you have entered into with any third parties, such as your employer, businesses, vendors, supplier, educational institutes, etc. and (ii) comply with all applicable laws , Tax requirements, and other rules and regulations (including having all required permits, licenses and registrations). As a Mentor, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who reside at or are otherwise present at the Mentorship at your request or invitation, excluding the Mentee (and the individuals the Mentee invites to the Mentorship, if applicable).
7.3 Listing Experiences, Events and other Mentor Services
7.3.1 To list an Experience, Event or other Mentor Service, you must create a Listing and submit the Experience, Event or Mentor Service to Kytewall. To be considered for publishing on the Kytewall Platform, Experiences, Events or other Mentor Services must at all times meet the quality standards for Experiences and meet Mentee demand. Kytewall reserves the right to decide, in its sole discretion, if a submitted Experience, Event or other Mentor Service will be published on the Kytewall Platform.
7.3.2 When listing an Experience, Event or other Mentor Service you must, where applicable, fully educate and inform Mentees about (i) any risks inherent to the Experience, Event or other Mentor Service, (ii) any requirements for participation, such as the minimum age, related skills, level of fitness or other requirements, and (iii) anything else they may need to know to safely participate in the Experience, Event or other Mentor Service (including dress codes, equipment, special certifications or licenses, etc.).
7.3.3 If you wish to list an Experience on behalf of a Nonprofit (“Social Impact Experience”), you must comply with the eligibility requirements for mentoring a Social Impact Experience. When listing a Social Impact Experience you (i) represent and warrant that you are duly authorized to act on behalf of your Nonprofit and (ii) acknowledge and agree that all payouts will be directed to an account owned by your Nonprofit. You and your Nonprofit acknowledge that listing a Social Impact Experience does not create a commercial fundraising or co-venturer, or charitable trust relationship with Kytewall and Kytewall is not a professional fundraiser or commercial participator. Nonprofits, and Kytewall, are responsible for determining what, if any, portion of their Listing Fee is a charitable contribution and for providing Mentees charitable tax receipts for any applicable charitable contributions. You and your Nonprofit are solely responsible for complying with all laws that apply to your organization and your Social Impact Experience.
7.3.4 You represent and warrant that you (i) understand and comply with all laws, rules and regulations that may apply to your Experience, Event or other Mentor Service(s), and (ii) will obtain any required licenses, permits, or registrations prior to providing your Experience, Event or other Mentor Service(s). You can find additional information about some of the legal obligations that may apply to you on our Responsible Mentoring pages.
7.3.5 You must provide an Experience, Event or other Mentor Service in person and may not allow any third party to provide the Experience, Event or other Mentor Service on your behalf, unless authorized by Kytewall.
7.4.1 Kytewall may enable Mentors to authorize other Members (“Co-Mentors”) to administer the Mentor’s Listing(s), and to bind the Mentor and take certain actions in relation to the Listing(s) as permitted by the Mentor, such as accepting booking requests, messaging and welcoming Mentees, and updating the Listing Fee and calendar availability (collectively, “Co-Mentor Services”). Any agreement formed between Mentor and Co-Mentor may not conflict with these Terms and the Payments Terms. Co-Mentors may only act in an individual capacity and not on behalf of a company or other organization, unless expressly authorized by Kytewall. Kytewall reserves the right, in our sole discretion, to limit the number of Co-Mentors a Mentor may invite for each Listing and to limit the number of Listings a Co-Mentor may manage.
7.4.2 Mentors and Co-Mentors may agree on a fee (“Co-Mentor Services Fee”) in consideration for the Co-Mentor Services provided by the Co-Mentor. When such an agreement is made, the Mentor agrees to pay the Co-Mentor Services Fee for any confirmed booking of their Listing, which will be deducted directly from the Listing Fee after deduction of any applicable Mentor Fee. In addition, Mentors may instruct a Co-Mentor to provide certain one-time services in relation to their Listing. Mentors can pay Co-Mentors for one-time services and any other expenses using the Resolution Center. Kytewall Payments will process Co-Mentor Services Fees and Resolution Center payments pursuant to the Payments Terms.
7.4.3 Mentors and Co-Mentors agree that each activity, booking, or other transaction reported on the Kytewall Platform, including any Co-Mentor Services provided by the Co-Mentor and any amounts due from a Mentor to the Co-Mentor for the provision of such services, will be deemed accurate, correct and binding, unless challenged, by notifying the other person and Kytewall (by emailing hello@Kytewall.com), within 21 days of posting of the disputed activity, booking or other transaction on the Kytewall Platform.
7.4.4 Mentors should exercise due diligence and care when deciding who to add as a Co-Mentor to their Listing(s). Mentors remain solely responsible and liable for any and all Listings and Member Content published on the Kytewall Platform, including any Listing created by a Co-Mentor on their behalf. Further, Mentors remain responsible and liable for their own acts and omissions, including, but not limited to, conduct that causes harm or damage to the Co-Mentor(s). Co-Mentors remain responsible and liable for their own acts and omissions when engaging in their roles and responsibilities as a Co-Mentor, including, but not limited to, conduct that causes harm or damage to the Mentor. In addition, both Mentor and Co-Mentor are jointly responsible and severally liable for third party claims, including Mentee claims, arising from the acts and omissions of the other person as related to mentoring activities, communications with Mentees, and the provision of any Co-Mentor Services.
7.4.5 Unless agreed otherwise by Mentor and Co-Mentor, Mentor and Co-Mentor may terminate the Co-Mentor agreement at any time. In addition, both Mentor and Co-Mentor acknowledge that their Co-mentoring relationship will terminate in the event that Kytewall (i) terminates the Co-Mentor service or (ii) terminates either party’s participation in the Co-Mentor service. When the Co-Mentor agreement is terminated, the Mentor will remain responsible for all of the Co-Mentor’s actions prior to the termination, including the responsibility to fulfill any pending or future bookings initiated prior to the termination. When a Member is removed as a Co-Mentor, that Member will no longer have access to any Mentor or Mentee information related to the applicable Mentor’s Listing(s). In addition, Mentor agrees to pay Co-Mentor for all Co-Mentor Services completed prior to Co-Mentor’s termination within 14 days of Co-Mentor’s termination via the Resolution Center. A Co-Mentor will not be entitled to any fees for any Co-Mentor Services that have not been completed prior to the Co-Mentor’s termination.
7.4.6 As a Co-Mentor, you will not be reviewed by Mentees, meaning that your Co-Mentor activities will not affect your Reviews or Ratings for other Listings for which you are a Mentor. Instead, the Mentor of such Listing(s) will be reviewed by Mentees (including potentially on the basis of the Co-Mentor’s conduct and performance). Mentors acknowledge that Reviews and Ratings from Mentees for their Listing(s) may be impacted by a Co-Mentor’s conduct and performance.
8.1 Terms applicable to all bookings
8.1.1 Subject to meeting any requirements (such as completing any verification processes) set by the Mentor, you can book a Listing available on the Kytewall Platform by following the respective booking process. All applicable fees, including the Listing Fee, Security Deposit (if applicable), Mentee Fee and any applicable Taxes (collectively, “Total Fees”) will be presented to you prior to booking a Listing. You agree to pay the Total Fees for any booking requested in connection with your Kytewall Account.
8.1.2 Upon receipt of a booking confirmation from Kytewall, a legally binding agreement is formed between you and your Mentor, subject to any additional terms and conditions of the Mentor that apply, including in particular the applicable cancellation policy and any rules and restrictions specified in the Listing. Kytewall Payments will collect the Total Fees at the time of the booking request or upon the Mentor’s confirmation pursuant to the Payments Terms.
8.1.3 If you book a Mentor Service on behalf of additional mentees, you are required to ensure that every additional mentee meets any requirements set by the Mentor, and is made aware of and agrees to these Terms and any terms and conditions, rules and restrictions set by the Mentor. If you are booking for an additional mentee who is a minor, you represent and warrant that you are legally authorized to act on behalf of the minor. Minors may only participate in an Experience, Event or other Mentor Service if accompanied by an adult who is responsible for them.
8.2 Booking Mentorships
8.2.1 You understand that a confirmed booking of an Mentorship (“Mentorship Booking”) is a limited license granted to you by the Mentor to enter, occupy and use the Mentorship for the duration of your engagement, during which time the Mentor (only where and to the extent permitted by applicable law) retains the right to re-enter the Mentorship, in accordance with your agreement with the Mentor.
9.1 Mentors and Mentees are responsible for any modifications to a booking that they make via the Kytewall Platform ("Booking Modifications"), and agree to pay any additional Listing Fees, Mentor Fees or Mentee Fees and/or Taxes associated with such Booking Modifications.
9.2 Mentees can cancel a confirmed booking at any time subject to the Listing’s cancellation policy, and Kytewall Payments will provide any refund to the Mentee in accordance with such cancellation policy. Unless extenuating circumstances exist, any amounts due to the Mentor under the applicable cancellation policy will be remitted to the Mentor by Kytewall Payments pursuant to the Payments Terms.
9.3 If a Mentor cancels a confirmed booking, the Mentee will receive a full refund of the Total Fees for such booking. In addition, Kytewall may keep the calendar for the Listing unavailable or blocked for the dates of the cancelled booking.
9.4 In certain circumstances, Kytewall may decide, in its sole discretion, that it is necessary to cancel a confirmed booking and make appropriate refund and payout decisions. This may be for reasons of extenuating circumstances or (i) where Kytewall believes in good faith, while taking the legitimate interests of both parties into account, this is necessary to avoid significant harm to Kytewall, other Members, third parties or property, or (ii) for any of the reasons set out in these Terms.
9.5 If a Mentee suffers a connecting issue pursuant to the Mentee Refund Policy, Kytewall may determine, in its sole discretion, to refund the Mentee part or all of the Total Fees in accordance with the Mentee Refund Policy.
9.6 Members may use the Resolution Center to send or request money for refunds, additional Mentor Services, Co-Mentor Services or Damage Claims related to bookings. You agree to pay all amounts sent through the Resolution Center in connection with your Kytewall Account, and Kytewall Payments will handle all such payments pursuant to the Payments Terms.
10.1 Within a certain timeframe after completing a booking, Mentees and Mentors can leave a public review (“Review”) and submit a star rating (“Rating”) about each other. Any Ratings or Reviews reflect the opinion of individual Members and do not reflect the opinion of Kytewall. Ratings and Reviews are not verified by Kytewall for accuracy and may be incorrect or misleading.
10.2 Ratings and Reviews by Mentees and Mentors must be fair, truthful and factual and may not contain any offensive or defamatory language. Ratings and Reviews must comply with Kytewall’s Content Policy and Extortion Policy.
10.3 Members are prohibited from manipulating the Ratings and Reviews system in any manner, such as instructing a third party write a positive or negative Review about another Member.
12.1 Kytewall may, in its sole discretion, round up or round down amounts that are payable from or to Mentees or Mentors to the nearest whole functional base unit in which the currency is denominated (i.e. to the nearest dollar, euro or other supported currency); for example, Kytewall will round up an amount of $101.50 to $102.00, and round down an amount of $101.49 to $101.00. For currencies that are denominated in large numbers, Kytewall may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency; for example, Kytewall may round up an amount of 1,045 up to 1,050 and 1,044 down to 1,040, or 837,500 up to 838,000 and 837,499 down to 837,000.
12.2 The Kytewall Platform facilitates bookings between Mentees and Mentors who may prefer to pay in a currency different from their destination currency, which may require currency conversions to accommodate these differing currency preferences. Although the Kytewall Platform allows Members to view the price of Listings in a number of currencies, the currencies available for Members to make and receive payments may be limited, and may not include the default currency in any given geographic location. Details regarding currency conversion, including any associated fees, are detailed in the Payments Terms.
13.1 As a Mentor you are solely responsible for determining your obligations to report, collect, remit or include in your Listing Fees any applicable VAT or other indirect sales taxes, occupancy tax, tourist or other visitor taxes or income taxes ("Taxes").
13.2 You understand that any appropriate governmental agency, department and/or authority ("Tax Authority") where your Mentorship is located may require Taxes to be collected from Mentees or Mentors on Listing Fees, and to be remitted to the respective Tax Authority. The laws in jurisdictions may vary, but these Taxes may be required to be collected and remitted as a percentage of the Listing Fees set by Mentors.
14.1 You are solely responsible for compliance with any and all laws, rules, regulations, and Tax obligations that may apply to your use of the Kytewall Platform. In connection with your use of the Kytewall Platform, you will not and will not assist or enable others to:
· breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms, Policies or Standards;
· use the Kytewall Platform or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Kytewall endorsement, partnership or otherwise misleads others as to your affiliation with Kytewall;
· use the Kytewall Platform in connection with the distribution of unsolicited commercial messages ("spam");
· offer, as a Mentor, any Mentorship that you do not yourself own or have permission to make available as a residential or other property through the Kytewall Platform;
· unless Kytewall explicitly permits otherwise, book any Listing if you will not actually be using the Mentor Services yourself;
· contact another Member for any purpose other than asking a question related to a your own booking, Listing, or the Member's use of the Kytewall Platform, including, but not limited to, recruiting or otherwise soliciting any Member to join third-party services, applications or websites, without our prior written approval;
· use the Kytewall Platform to request, make or accept a booking independent of the Kytewall Platform, to circumvent any Service Fees or for any other reason;
· request, accept or make any payment for Listing Fees outside of the Kytewall Platform or Kytewall Payments. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold Kytewall harmless from any liability for such payment;
· 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 otherwise engage in any abusive or disruptive behavior;
· use, display, mirror or frame the Kytewall Platform or Collective Content, or any individual element within the Kytewall Platform, Kytewall's name, any Kytewall trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Kytewall Platform, without Kytewall's express written consent;
· dilute, tarnish or otherwise harm the Kytewall brand in any way, including through unauthorized use of Collective Content, registering and/or using Kytewall or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Kytewall domains, trademarks, taglines, promotional campaigns or Collective Content;
· use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Kytewall Platform for any purpose;
· avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Kytewall or any of Kytewall's providers or any other third party to protect the Kytewall Platform;
· attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Kytewall Platform;
· take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Kytewall Platform;
· export, re-export, import, or transfer the Application except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; or
· violate or infringe anyone else’s rights or otherwise cause harm to anyone.
14.2 You acknowledge that Kytewall has no obligation to monitor the access to or use of the Kytewall Platform by any Member or to review, disable access to, or edit any Member Content, but has the right to do so to (i) operate, secure and improve the Kytewall Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Members’ compliance with these Terms; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to Member Content that it determines is harmful or objectionable; or (v) as otherwise set forth in these Terms. Members agree to cooperate with and assist Kytewall in good faith, and to provide Kytewall with such information and take such actions as may be reasonably requested by Kytewall with respect to any investigation undertaken by Kytewall or a representative of Kytewall regarding the use or abuse of the Kytewall Platform.
14.3 If you feel that any Member you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to Kytewall by contacting us with your police station and report number (if available); provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
15.1 This Agreement shall be effective for a 30-day term, at the end of which it will automatically and continuously renew for subsequent 30-day terms until such time when you or Kytewall terminate the Agreement in accordance with this provision.
15.2 You may terminate this Agreement at any time via the "Cancel Account" feature on the Kytewall Platform or by sending us an email. If you cancel your Kytewall Account as a Mentor, any confirmed booking(s) will be automatically cancelled and your Mentees will receive a full refund. If you cancel your Kytewall Account as a Mentee, any confirmed booking(s) will be automatically cancelled and any refund will depend upon the terms of the Listing’s cancellation policy.
15.3 Without limiting our rights specified below, Kytewall may terminate this Agreement for convenience at any time by giving you thirty (30) days' notice via email to your registered email address.
· refuse to surface, delete or delay any Listings, Ratings, Reviews, or other Member Content;
· cancel any pending or confirmed bookings;
· limit your access to or use of the Kytewall Platform;
· temporarily or permanently revoke any special status associated with your Kytewall Account; or
· temporarily or in case of severe or repeated offenses permanently suspend your Kytewall Account.
In case of non-material breaches and where appropriate, you will be given notice of any intended measure by Kytewall and an opportunity to resolve the issue to Kytewall's reasonable satisfaction.
15.6 If we take any of the measures described above (i) we may refund your Mentees in full for any and all confirmed bookings that have been cancelled, irrespective of preexisting cancellation policies, and (ii) you will not be entitled to any compensation for pending or confirmed bookings that were cancelled.
15.7 When this Agreement has been terminated, you are not entitled to a restoration of your Kytewall Account or any of your Member Content. If your access to or use of the Kytewall Platform has been limited or your Kytewall Account has been suspended or this Agreement has been terminated by us, you may not register a new Kytewall Account or access and use the Kytewall Platform through an Kytewall Account of another Member.
15.8 Unless you reside in Germany, if you or we terminate this Agreement, the clauses of these Terms that reasonably should survive termination of the Agreement will remain in effect.
If you choose to use the Kytewall Platform or Collective Content, you do so voluntarily and at your sole risk. The Kytewall Platform and Collective Content is provided “as is”, without warranty of any kind, either express or implied.
You agree that you have had whatever opportunity you deem necessary to investigate the Kytewall Services, laws, rules, or regulations that may be applicable to your Listings and/or Mentor Services you are receiving and that you are not relying upon any statement of law or fact made by Kytewall relating to a Listing.
If we choose to conduct identity verification or background checks on any Member, to the extent permitted by applicable law, we disclaim warranties of any kind, either express or implied, that such checks will identify prior misconduct by a Member or guarantee that a Member will not engage in misconduct in the future.
You agree that some Experiences, Events or other Mentor Services may carry inherent risk, and by participating in those Mentor Services, you choose to assume those risks voluntarily. For example, some Mentor Services may carry risk of illness, bodily injury, disability, or death, and you freely and willfully assume those risks by choosing to participate in those Mentor Services. You assume full responsibility for the choices you make before, during and after your participation in a Mentor Service. If you are bringing a minor as an additional mentee, you are solely responsible for the supervision of that minor throughout the duration of your Mentor Service and to the maximum extent permitted by law, you agree to release and hold harmless Kytewall from all liabilities and claims that arise in any way from any injury, death, loss or harm that occurs to that minor during the Mentor Service or in any way related to your Mentor Service.
The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.
17.1 Unless you reside in the EU, you acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the Kytewall Platform and Collective Content, your publishing or booking of any Listing via the Kytewall Platform, your egangement at any Mentorship, participation in any Experience or Event or use of any other Mentor Service or any other interaction you have with other Members whether in person or online remains with you. Neither Kytewall nor any other party involved in creating, producing, or delivering the Kytewall Platform or Collective Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the Kytewall Platform or Collective Content, (iii) from any communications, interactions or meetings with other Members or other persons with whom you communicate, interact or meet with as a result of your use of the Kytewall Platform, or (iv) from your publishing or booking of a Listing, including the provision or use of a Listing’s Mentor Services, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Kytewall has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Except for our obligations to pay amounts to applicable Mentors pursuant to these Terms or an approved payment request under the Kytewall Mentor Guarantee, in no event will Kytewall’s aggregate liability arising out of or in connection with these Terms and your use of the Kytewall Platform including, but not limited to, from your publishing or booking of any Listings via the Kytewall Platform, or from the use of or inability to use the Kytewall Platform or Collective Content and in connection with any Mentorship, Experiences, Event or other Mentor Service, or interactions with any other Members, exceed the amounts you have paid or owe for bookings via the Kytewall Platform as a Mentee in the twelve (12) month period prior to the event giving rise to the liability, or if you are a Mentor, the amounts paid by Kytewall to you in the twelve (12) month period prior to the event giving rise to the liability, or one hundred U.S. dollars (US$100), if no such payments have been made, as applicable. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Kytewall and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. If you reside outside of the U.S., this does not affect Kytewall’s liability for death or personal injury arising from its negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.
17.2 If you reside in the EU, Kytewall is liable under statutory provisions for intent and gross negligence by us, our legal representatives, directors, or other vicarious agents. The same applies to the assumption of guarantees or any other strict liability, or in case of a culpable injury to life, limb, or health. Kytewall is liable for any negligent breaches of essential contractual obligations by us, our legal representatives, directors, or other vicarious agents. Essential contractual obligations are such duties of Kytewall in whose proper fulfilment you regularly trust and must trust for the proper execution of the contract but the amount shall be limited to the typically occurring foreseeable damage. Any additional liability of Kytewall is excluded.
You agree to release, defend (at Kytewall’s option), indemnify, and hold Kytewall and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your breach of these Terms or our Policies or Standards, (ii) your improper use of the Kytewall Platform or any Kytewall Services, (iii) your interaction with any Member, egangement at an Mentorship, participation in an Experience, Event or other Mentor Service, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, egangement, participation or use, (iv) Kytewall’s Collection and Remittance of Occupancy Taxes, or (v) your breach of any laws, regulations or third party rights.
19.1 This Dispute Resolution and Arbitration Agreement shall apply if you (i) reside in the United States; or (ii) do not reside in the United States, but bring any claim against Kytewall in the United States (to the extent not in conflict with Section 21).
19.2 Overview of Dispute Resolution Process. Kytewall is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom Section 19.1 applies: (1) an informal negotiation directly with Kytewall’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section 19). Specifically, the process provides:
· Claims can be filed with AAA online (www.adr.org);
· Arbitrators must be neutral and no party may unilaterally select an arbitrator;
· Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
· Parties retain the right to seek relief in small claims court for certain claims, at their option;
· The initial filing fee for the consumer is capped at $200;
· The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
· The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
19.3 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Kytewall each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact Kytewall’s customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.
19.4 Agreement to Arbitrate. You and Kytewall mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the Kytewall Platform, the Mentor Services, or the Collective Content (collectively, “Disputes”) will be settled by binding arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Kytewall agree that the arbitrator will decide that issue.
19.5 Exceptions to Arbitration Agreement. You and Kytewall each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
19.6 Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
19.7 Modification to AAA Rules - Arbitration Hearing/Location. In order to make the arbitration most convenient to you, Kytewall agrees that any required arbitration hearing may be conducted, at your option, (a) in the county where you reside; (b) in San Francisco County; (c) in any other location to which you and Kytewall both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
19.8 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
19.9 Jury Trial Waiver. You and Kytewall acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
19.10 No Class Actions or Representative Proceedings. You and Kytewall 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, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and Kytewall both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.
19.11 Severability. Except as provided in Section 19.11, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
19.12 Changes. Notwithstanding the provisions of Section 3 (“Modification of these Terms”), if Kytewall changes this Section 19 (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Kytewall’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Kytewall in accordance with the provisions of the “Dispute Resolution and Arbitration Agreement” section as of the date you last accepted these Terms (or accepted any subsequent changes to these Terms).
19.13 Survival. Except as provided in Section 19.12 and subject to Section 15.8, this Section 19 will survive any termination of these Terms and will continue to apply even if you stop using the Kytewall Platform or terminate your Kytewall Account.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Kytewall Platform (“Feedback“). You may submit Feedback by emailing us, through the “Feedback” section of the Kytewall Platform, or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
21.1 If you reside in the United States, these Terms will be interpreted in accordance with the laws of the State of Texas and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration Agreement in Section 19 must be brought in state or federal court in San Francisco, Texas, unless we both agree to some other location. You and we both consent to venue and personal jurisdiction in San Francisco, Texas.
22.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between Kytewall and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Kytewall and you in relation to the access to and use of the Kytewall Platform.
22.2 No joint venture, partnership, employment, or agency relationship exists between you and Kytewall as a result of this Agreement or your use of the Kytewall Platform.
22.3 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
22.4 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
22.5 Kytewall’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
22.6 You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without Kytewall's prior written consent. Kytewall may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.
22.7 Unless specified otherwise, any notices or other communications to Members permitted or required under this Agreement, will be in writing and given by Kytewall via email, Kytewall Platform notification, or messaging service (including SMS and WeChat).
22.8 If you reside in the EU you can access the European Commission’s online dispute resolution platform here: http://ec.europa.eu/consumers/odr.
22.9 If you have any questions about these Terms please email us at hello@Kytewall.com.