Terms of Use and Conditions

Welcome to Cappello’s website. These Terms of Use and Conditions (“Terms”) govern your use of the Cappello’s (“our”) website (“Site”). Please read the terms in full before using our Site. By accepting these Terms, or by using our Site, you agree to be legally bound by these Terms, our Privacy Policy, and any other underlying agreements or terms. If you do not agree to these terms, please do not use our Site. We reserve the right to modify these Terms at any time without prior notice, and your use of the Site binds you to the changes made. We do occasionally update these terms so please refer to them in the future.

Access to Site

You will be able to access our Site without having to register any details with us. However, if you’d like to create an account with us, you may have to provide certain contact information and/or a username and password to access your account.

Use of Site

Our Site, images, data, text, audios, videos, photographs, custom graphics, logos, button icons, descriptions and all other material provided, and the collection and compilation and assembly thereof are the exclusive property of Cappello’s or its parent and are protected by U.S. and international copyright laws.

The contents of our Site may be used for informational purposes only. Any other use of such contents, including the reproduction, modification, distribution, transmission, republication, display or performance of the contents without our prior written consent is expressly forbidden.

Any other trademarks or service marks appearing anywhere on our Site are the property of their respective owners. To the extent any product name or logo does not appear with a trademark (™) does not constitute a waiver of any and all intellectual property rights that Cappello’s has established in any of its products, features, or service names or logos.

You may not use, reproduce, modify, transmit, display, publish, sell, create derivative works, or distribute by any means, method, or process whatsoever, now known or hereafter developed, any content of this Site for commercial profit or gain. Nothing in these Terms or on the Site shall be construed as conferring any intellectual property or other proprietary rights to you. You agree to observe copyright and other applicable laws and may not use the content in any manner that infringes or violates the rights of any person or entity. We hold all rights to the content on this Site.

As a condition of your use of the Site, you will not use the Site, or any contents, for any purpose that is unlawful in any applicable jurisdiction where our Site is being used, or prohibited by these terms, conditions, and notices, and you agree to abide by the terms and conditions set forth in the “User Conduct” section. You may not use the Site contents in any manner that could damage, disable, overburden, or impair any of our equipment or interfere with any other party’s use and enjoyment of the Site, or any contents. You may not attempt to gain access to any portion of the Site, or any of its contents, other than those for which you are authorized.

While every effort is made for the timeliness and accuracy of the Site content, we make no warranties either express or implied, and assume no liability or responsibility for the completeness, use, accuracy, reliability, correctness, timeliness or usefulness, of any of the results obtained from its use.

We make no representation or warranty, express or implied, with respect to the content of the Site, or links to other websites, including but not limited to accurateness, completeness, correctness, timeliness or reliability. We make no representation or warranty regarding the merchantability or fitness for a particular purpose or use with respect to any content whatsoever that may be accessed through this Site, or the results to be obtained from using the Site. We make no representation or warranty that the Site or content is free from defects or viruses. Your use of external links and third-party websites is at your own risk and subject to the terms and conditions of use for such links and websites.

While every effort is made so that all content provided on the Site does not contain viruses and/or harmful materials, you should take reasonable and appropriate precautions to scan for viruses or otherwise protect your computer or device, and you should have a complete and current backup of the applicable items on your computer or device. We disclaim any liability for the need for services or replacing equipment or data resulting from your use of the Site. While every effort is made for smooth and continuous operation, we do not warrant the Site will operate error free.

By submitting a telephone number to Cappello’s you agree that a representative of Cappello’s can contact you at the number you provide, potentially using automated technology (including texts/SMS messaging) or a pre-recorded message. Your consent is not an obligation to receive any of our products. See more information below, “SMS/MMS Mobile Message Marketing Program Terms and Conditions”

Site Uptime

We take all reasonable steps so that our Site is available 24 hours every day, 365 days per year. However, websites do sometimes encounter downtime due to server and other technical issues. Therefore, we will not be liable if this Site is unavailable at any time.

Our Site may be temporarily unavailable due to issues such as system failure, maintenance or repair, or for reasons beyond our control. Where possible, we will try to give our users advance warning of maintenance issues but shall not be obliged to do so.

User Conduct

When using our Site, you shall not post or send to or from either the Site:

(a) content for which you have not obtained all necessary consents;

(b) content that is discriminatory, obscene, pornographic, defamatory, liable to incite racial hatred, in breach of confidentiality or privacy, which may cause annoyance or inconvenience to others, which encourages or constitutes conduct that would be deemed a criminal offense, give rise to a civil liability, or otherwise is contrary to the law in any applicable jurisdiction where our Site is being used;

(c) content which is harmful in nature including, and without limitation, computer viruses, Trojan horses, corrupted data, or other potentially harmful software or data.

We will fully cooperate with any law enforcement authorities or court order requiring us to disclose the identity or other details or any person posting materials to our Site in breach of this Section.

You shall not use our Site while distracted or preoccupied, such as when operating a motor vehicle. You should access our Site only with due regard for your own safety and the safety of others.

Links to and from Third Party Websites

Any links furnished on our Site may allow you to leave our Site. These third-party websites are not under our control and we disclaim any responsibility for the contents of such linked websites or any link(s) contained in any such linked website(s) or any changes or updates to any of these websites. We further disclaim any responsibility for any form of transmission received from any linked third-party website or advertising. We provide these links to you as a convenience to you and inclusion of any link herein shall in no way be construed as an endorsement by us of the website(s).

If you would like to link to our Site, you may only do so on the basis that you link to, but do not replicate, any page of our Site, and subject to the following conditions:

(a) you do not in any way imply that we are endorsing any services or products unless this has been specifically agreed with us;

(b) you do not misrepresent your relationship with us or present any false information about us;

(d) your website does not contain content that is offensive, controversial, infringes any intellectual property rights or other rights of any other person or does not comply in any way with the law of the United States of America.

If you choose to link our Site in breach of this Section, you shall fully indemnify us for any loss or damage suffered as a result of your actions.

Disclaimers

All information on our Site is of a general nature and is furnished for your knowledge and understanding and as an informational resource only. The documents and any related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information contained on our Site. We may make improvements and/or changes to any of the products depicted or described herein at any time. We expressly disclaim any responsibility or liability for any adverse consequences or damages resulting from your use of the Site or reliance on the information from either.

THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER WITH REGARD TO ANY PRODUCTS OR INFORMATION PROVIDED THROUGH THIS SITE, INCLUDING, TITLE, NON-INFRINGEMENT, OR ANY OTHER WARRANTY, CONDITION, GUARANTY, OR REPRESENTATION, WHETHER ORAL OR IN WRITING, OR IN ELECTRONIC FORM.

CAPPELLO’S DOES NOT WARRANT OR ASSUME ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION DESCRIBED WITHIN OR DERIVED FROM OUR SITE.

Limitation of Liability

YOUR USE OF OUR SITE IS ENTIRELY AT YOUR OWN RISK. WE WILL NOT BE RESPONSIBLE TO YOU OR TO ANY THIRD PARTIES FOR ANY DIRECT OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OR LOSSES OR INJURY YOU MAY INCUR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE SITE OR THE PRODUCTS, OR YOUR RELIANCE ON OR USE OF THE SITE, THE INFORMATION, PRODUCTS, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OR ANY FAILURE OF PERFORMANCE, OR ANY OF THE DATA OR OTHER MATERIALS TRANSMITTED THROUGH OR RESIDING ON OUR SITE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF WE HAVE ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.

Indemnification

You agree to defend, indemnify, and hold us, our officers, directors, employees, volunteers, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from or alleged to result from, your use of and access to the Site or your violation of these Terms or your violation of any third party right, including without limitation any trademark, copyright or other proprietary or privacy right.

Assignment

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you.

Applicable Law

We make no representations that the content or the Site is appropriate or may be used or downloaded outside the United States. Access to the Site and/or the content may not be legal in certain countries outside the United States. If you access the Site from outside the United States, you do so at your own risk and are responsible for compliance with the laws of the jurisdiction from which you access the Site.

Our Site is created and controlled by the State of Denver, United States of America. The Site, and its contents, and any disputes arising therefrom shall be construed and interpreted under the laws of the State of Denver and applicable United States federal laws. Use of our Site constitutes agreement of the user to the jurisdiction of the state and federal courts located therein.

Our Site is subject to the United States export control laws and regulations, and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import of any data on our Site, as may be required.

General

These Terms, together with the Privacy Policy, other terms or legal notices published by us on the Site, and any other applicable agreements, shall constitute the entire agreement between us concerning use of the Site. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any term shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

SMS/MMS Mobile Message Marketing Program Terms and Conditions

Cappello’s is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

User Opt-In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.

User Opt-Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt-Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.

Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at tophat@cappellos.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt-outs must be submitted in accordance with the procedures set forth above.

MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.

Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Arvada, Colorado before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which Cappello’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.

Our Contact Information

Cappello’s
3136 Larimer Street
Denver, CO 80205
talk@cappellos.com
1-844-353-2863

Effective Date: July 15th, 2021