Subscription Terms

CAPTURE2, INC.
SUBSCRIPTION TERMS

 

THESE TERMS (ALONG WITH THE SUBSCRIPTION AGREEMENT AND THE TERMS OF SERVICES) GOVERN YOUR USE OF THE CAPTURE2, INC. HOSTED SERVICES. BY ACCEPTING THESE TERMS, EITHER BY INDICATING YOUR ACCEPTANCE OR BY EXECUTING SUBSCRIPTION AGREEMENT THAT REFERENCES THESE TERMS, YOU AGREE TO THE TERMS OF THIS AND WILL BE REFERRED TO AS “YOU” OR “CUSTOMER” IN THESE TERMS. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE HOSTED SERVICES.

You may not access the Hosted Services if You are a competitor of Capture2, except with Capture2’s prior written consent.  In addition, You may not access the Hosted Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose.  These Terms were last updated on June 10, 2020 (“Terms”) and are current, accurate and complete as of the date of execution of the Customer’s Subscription Agreement. It is effective between You and Capture2, Inc., a Delaware corporation with offices at 2820 Camino Del Rio S, San Diego, California (“Capture2“) as of the date of You accepted these Terms (the “Effective Date“).

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

 

1. DEFINITIONS.

1. 1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with Capture 2 or Customer.  “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
   2. “Customer Data” means any data, information or other materials submitted (or uploaded) by Customer or Provider to the Hosted Services.
   3. “Customer Trademarks” means any trademarks that Customer provides Capture2 for the purpose of referring to Customer within the user interface for the Hosted Services.
   4. “Dispute Period” means fifteen (15) days from receipt of invoice.
   5. “Documentation” means Capture2’s then current on-line help, guides, and manuals published by Capture2 and made generally available by Capture2 for the Hosted Services. Documentation may be updated from time to time by Capture2 and, in such cases, Capture2 shall make such updates available to the Customer.
   6. “Effective Date” means the date Customer executes Customer Order Form (Subscription Agreement).
   7. “Hosted Services” means the generally available online, Capture2 Web-based applications and services related to the market intelligence of government procurements, capture team management, and proposal collaboration that are ordered by Customer under a Subscription Agreement, including updates thereto from time to time.
   8. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
   9. “Provider” means a third-party service provider (e.g., law firm or accounting firm), that Customer authorizes to use the Hosted Services for the benefit of Customer. Providers shall be deemed Users for purposes of these Terms.
   10. “Subscription Agreement” means the ordering documents for Customer purchases from Capture2 that are executed hereunder by Customer and Capture2 from time to time. All Subscription Agreements shall be deemed incorporated herein.
   11. “Subscription Term” means the period of time that Customer may use and access the Hosted Services beginning on the Effective Date and continuing throughout the Subscription Term as set forth in the applicable Subscription Agreement.  The Hosted Services may automatically deactivate and become non-operational at the end of the Subscription Term, and Customer shall not be entitled to access the Hosted Services unless the Subscription Term is renewed. The initial Subscription Term is set forth in the initial Subscription Agreement.
   12. “Users” means individuals who are authorized by Customer to use the Hosted Services, for whom subscriptions to the Hosted Services have been purchased, and who have been supplied user identifications and passwords by Customer (or by Capture2 at Customer’s request).  Users may include but are not limited to: (i) employees, consultants, contractors and agents of Customer, or (ii) employees, consultants, contactors, and agents of Providers. Users may not include any individual that is a competitor of Capture2 unless Capture2 has provided written consent for such individuals to use the Hosted Services.

2. HOSTED SERVICES.

1. 1. Capture2 shall make the Hosted Services available to Customer and its Users pursuant to these Terms and the applicable Subscription Agreement during each Subscription Term.  Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Capture2 regarding future functionality or features. Customer shall be responsible for their Users’ compliance with these Terms.
   2. The fees to use the Hosted Services are set forth in the applicable Subscription Agreement.
   3. Customer shall not, and ensure that their Users shall not: (i) sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Hosted Services available to any third party other than Users; (ii) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or subvert the intrinsic security of any part of the Hosted Services for any purpose including without limitation discovering individual Customer Data or re-identifying anonymous data; (iii) access or use the Hosted Services in order to build a similar or competitive product or copy the Hosted Services; (iv) disclose any review of the Hosted Services to any third party without Capture2’s prior written approval; (v) use any e-mail addresses and other customer contact information provided on the Hosted Services for marketing or advertising purposes; or  (vi) post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, obscene, indecent or unlawful material or information on, through, or in connection with the Hosted Services or Capture2. Except as expressly stated herein, no part of the Hosted Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means to, including but not limited to electronic, mechanical, photocopying, recording, or other means. Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Hosted Services, and notify Capture2 promptly of any such unauthorized access or use.

3. PROVIDERS. Customer may authorize Providers to use the Hosted Services.  A Provider’s use of the Hosted Services and provision of services to Customer related thereto including but not limited to any terms, conditions, warranties or representations associated with such services and any exchange of data between Customer and such Provider is solely between Customer and the applicable Provider. Capture2 shall have no liability or obligation for, and does not endorse or accept any responsibility for Provider, the contents or use of third-party websites or any transactions completed with Providers or any third parties. Customer is responsible for all acts and omissions of Provider (including all of the Provider’s Users).  Further, the Customer agrees that any agreement between the Customer and the Provider related to the Provider’s use of the Hosted Services shall include at least the restrictions included in these Terms.

 

4. OWNERSHIP.

1. 1. As between the Parties, Capture2 shall own and retain all right, title and interest in and to the Hosted Services and Capture2 Confidential Information (defined below), including all intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.  As between the Parties, Customer shall own all right, title and interest in and to any Customer Data and Customer Confidential Information.  Customer grants to Capture2 (and any other domestic third-party that Capture2 contracts with (so long as they are not competitive in nature with Customer) to provide any portion of the Hosted Services to the Customer) the non-exclusive, right to use Customer Data for the purpose of improving or enhancing the Hosted Services (i.e., search functionality, feature usage statistics, keyword aggregation, improving ease of use, etc.) (collectively, “anonymous aggregated data”), provided that anonymous aggregated data will not directly identify and cannot reasonably be used to identify Customer or Customer’s Users.
   2. Capture2 shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Hosted Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or Providers, including Users, relating to the functionality and operation of the Hosted Services.

 

5. BILLING AND PAYMENT.
6. 1. Customer agrees to pay in advance for all Hosted Services ordered. Except as otherwise provided: (i) the fees set forth in each Subscription Agreement hereunder shall be fixed during the Subscription Term; and (ii) the Hosted Services fees for the Subscription Term set forth in each Subscription Agreement hereunder will be invoiced upon execution of such Subscription Agreement in accordance with the Payment Schedule set forth in the Subscription Agreement.  All fees under these Terms are nonrefundable except as otherwise set forth herein. Capture2’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed by Capture2.
   2. Except as otherwise provided in a Subscription Agreement, payment for invoices is due on the deadline specified in the invoice and if there is no deadline specified in the invoice, payment is due within thirty (30) days of Customer’s receipt of the applicable invoice (excluding amounts under reasonable and good faith dispute).  If any amounts are withheld by Customer, Customer shall, within the Dispute Period provide Capture2 a reasonably detailed written explanation of the nature of the dispute, which explanation shall set forth the dollar amounts withheld and the reasons for withholding such amounts.  If Customer does not dispute the applicable invoice during the Dispute Period, any such dispute shall be deemed waived.  For clarity, Customer remains obligated to pay Capture2 for all portions of the applicable invoice that are not under reasonable and good faith dispute.  Overdue amounts are subject to interest at one and a half percent (1.5%) per month, or the maximum rate permitted by law, whichever is lower, and may result in suspension of Customer’s ability to access the Hosted Services until payment is made.  Customer shall reimburse Capture2 for all reasonable, actual costs (including reasonable attorneys’ fees) incurred by Capture2 in the collection of overdue amounts.

 

6. SUPPORT. For the Subscription Term, Capture2 shall provide assistance to Customer by telephone, e-mail or online chat. Capture2 shall use reasonable commercial efforts to correct, at no additional charge to Customer, any reproducible errors reported by Customer. Capture2 shall review all requests for improvements and new functionality, but Capture2 shall have no obligation to provide any modifications (including any improvements and new functionality) to the Hosted Services.

 

7. LIMITED REPRESENTATIONS & WARRANTIES. Each Party represents and warrants that it has the power and authority to enter into these Terms. Capture2 warrants that: (i) it will provide the Hosted Services in a manner consistent with generally accepted industry standards; (ii) the Hosted Services will perform substantially in accordance with its online Documentation under normal use; (iii) the functionality of the Hosted Services will not be materially decreased during a Subscription Term; (iv) the configuration of the Hosted Services will conform in all material respects to these Terms and/or the applicable Subscription Agreement;  and (v) the Hosted Services will not contain or transmit to Customer any Malicious Code (except for Malicious Code that may be uploaded by Users). In the event of breach of (i), (ii) or (iv) above, Customer’s sole and exclusive remedy, and the sole and exclusive obligation of Capture2, shall be to use commercially reasonable efforts to correct or provide a workaround for the reproducible error(s) that cause breach of these warranties, or  if Capture2 is unable to make the Hosted Services operate as warranted within a reasonable time considering the severity of the error and its impact on the Customer, Customer shall be entitled to terminate these Terms and receive a pro-rata refund.

 

8. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 7, ALL HOSTED SERVICES, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY CAPTURE2 ARE PROVIDED “AS IS.” CAPTURE2 (AND ITS AFFILIATES) SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CAPTURE2 MAKES NO WARRANTY OF ANY KIND THAT THE HOSTED SERVICES OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S, PROVIDER’S OR USERS REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.

 

9. LIMITATION OF LIABILITY.

1. 1. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CAPTURE2 (AND ITS AFFILIATES) OR ANY THIRD-PARTIES CAPTURE2 CONTRACTS WITH TO PROVIDE THE HOSTED SERVICES EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
   2. SUBJECT TO SECTION 9C, IN NO EVENT SHALL CAPTURE2 (AND ITS AFFILIATES) OR ANY THIRD-PARTIES CAPTURE2 CONTRACTS WITH TO PROVIDE THE HOSTED SERVICES BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS; (b) LOSS OF GOODWILL OR REPUTATION; (c) USE, INABILITY TO USE, LOSS, OR INTERRUPTION OF THE HOSTED SERVICES; (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA, OR BREACH OF CUSTOMER DATA OR SYSTEM SECURITY; (e) COST OF REPLACEMENT GOODS OR SERVICES; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH CUSTOMERS, PROVIDERS OR USERS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
   3. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO THE CAUSES OF ACTION OR LIABILITY OF CAPTURE2 ADDRESSED IN THE INDEMNIFICATION SECTION 10 BELOW. FURTHER, CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY.

 

10. INDEMNITIES.
11. 1. Indemnification by Capture2.

1. 1. 1. Capture2 shall defend, indemnify and hold Customer harmless against any “Claims” made or brought against Customer by a third party alleging that: (i) the use of the Hosted Services as contemplated hereunder infringes the copyrights, patents, trademarks or trade secrets of such third party;  (ii) Capture2’s breach of its confidentiality obligations relating to Customer Data harmed such third party; or (iii) Capture2 failed to comply with applicable laws, rules or regulations in its performance of these Terms; provided, that Customer: (a) promptly gives written notice of the Claim to Capture2; (b) gives Capture2 control of the defense and settlement of the Claim (provided that Customer may participate in such defense at its own expense and that Capture2 may not settle any Claim in a manner that admits liability on behalf of Customer); and (c) provides to Capture2, at Capture2’s expense, reasonable assistance in connection with the defense and settlement of the Claim. Capture2 shall pay Customer any damages finally awarded against Customer, settlements agreed to in accordance with Section 10.A(b) and reasonable costs and expenses (including reasonable legal fees) directly attributable to such Claim.
      2. Capture2 may, at its sole option and expense: (i) procure for Customer the right to continue using the Hosted Services under these Terms; or (ii) replace or modify the Hosted Services to be non-infringing without a material decrease in the functionality of the Hosted Services.  If the foregoing options are not reasonably practicable, Capture2 may terminate these Terms and refund to Customer all prepaid fees for the remainder of its Subscription Term following the date of termination.  This Section 10 represents Capture2’s entire obligation and Customer’s exclusive remedy regarding any third-party intellectual property claims.
      3. Furthermore, Capture2 shall have no liability for any Claim under Section 10.A to the extent such liability is the result of: (i) modifications to the Hosted Services by anyone other than Capture2 or its agents (provided that Capture2 shall not be liable if Capture2 or its agents made the modifications using requirements documents, written specifications or other written materials submitted by Customer or its agents or representatives); (ii) the use or combination of the Hosted Services with any other item not provided by Capture2 where in the absence of such use or combination, the Hosted Services alone would not have given rise to the Claim; or (iii) Customer’s continued use of an infringing version of the Hosted Services when the then current version of the Hosted Services has been modified to be non-infringing.

1. 2. Indemnification by Customer. Customer shall defend, indemnify and hold Capture2 harmless against any Claims made or brought against Capture2 by a third party alleging that (i) the Customer Data or Capture2’s transmission or hosting thereof infringes or violates any rights of a third party; (ii) Customer’s use of the Hosted Services in violation of these Terms infringes or violates the rights of any third party; or (iii) Customer failed to comply with applicable laws, rules or regulations in its performance of these Terms; provided, that Capture2 (a) promptly gives written notice of the Claim to Customer; (b) gives Customer control of the defense and settlement of the Claim (provided that Capture2 may participate in such defense at its own expense and that Customer may not settle any Claim in a manner that admits liability on behalf of Capture2); and (c) provides to Customer, at Customer’s expense, reasonable assistance in connection with the defense and settlement of the Claim. Customer shall pay Capture2 any damages finally awarded against Capture2, settlements agreed to in accordance with Section 10.B(b) and reasonable costs and expenses (including reasonable legal fees) directly attributable to such Claim.

 

11. TERM AND TERMINATION.
12. 1. The term of these Terms shall commence on the Effective Date and shall continue until the Subscription Term specified in a corresponding Subscription Agreement ends or these Terms are terminated by mutual agreement between the Parties, or as otherwise provided herein.
    2. A Party may terminate these Terms for cause: (i) upon breach of these Terms if such breach has not been cured within 30 days of written notice from the non-breaching Party specifying the breach in detail and, if Capture2 is the non-breaching Party, Capture2 may terminate Customer’s password, account, access to and/or use of the Hosted Services; (ii) immediately upon written notice if the other Party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; (iii) if either Party undergoes a change of control in favor of a direct competitor of the other Party; (iv) prior to the expiration to the initial thirty (30) day risk free period after implementation; or (v) as otherwise provided herein.  Capture2 may terminate these Terms for cause if the implementation of the Hosted Services has not been completed within three (3) months of the Effective Date (for the initial purchase of subscriptions) and, in such case, Capture2 may terminate Customer’s password, account, access to and/or use of the Hosted Services.
    3. At Customer’s request, prior to termination of these Terms, provided Customer is not in breach of these Terms, Capture2 will extend access to Hosted Services at no cost for an additional 30 calendar days past the Subscription Term for Customer to retrieve any Customer Data. Customer agrees and acknowledges that Capture2 has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted after 30 days following the termination of these Terms or if Customer’s account is 30 days or more past due. The following provisions shall survive any termination of these Terms: Sections 4, 5, 7-10, 11.C, 12, and 14.

 

12. CONFIDENTIAL INFORMATION.
13. 1. Each Party may have access to information that is confidential to the other Party. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party“) disclosed to the other Party (“Receiving Party“), whether orally or in writing, that is clearly identified as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential, including but not limited to the terms and conditions of these Terms (including pricing and other terms reflected in an Subscription Agreement  hereunder), the Customer Data, the Hosted Services, business and marketing plans, technology and technical information, product designs, trade secrets and business processes. A Party’s Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; (iv) is independently developed by the other Party without use of or reference to the other Party’s Confidential Information. The Parties agree to use all reasonable care to prevent disclosure of the other Party’s Confidential Information to any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that Capture2 may disclose Customer’s Confidential Information to its employees, consultants, Providers and other third-party providers solely to the extent necessary to provide the Hosted Services under these Terms, provided that Capture2 has a non-disclosure agreement in place with such third-party provider that protects such Confidential Information against disclosure in a manner no less protective than these Terms. This Section 12 constitutes the entire understanding of the Parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to Confidential Information.
    2. If Receiving Party is compelled by law or legal process to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s expense, if Disclosing Party wishes to contest the disclosure.
    3. If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of this Section 12, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies may be inadequate.
    4. Upon any termination of these Terms, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information for five (5) years and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing such Confidential Information.
    5. Capture2’s obligations regarding Customer Data and identification and other information concerning Customer and Customer’s Users shall be governed by the Capture2 Online Privacy Policy available at https://capture2proposal.com/privacy-policy/.

 

13. CUSTOMER’S RESPONSIBILITIES. Customer will comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Hosted Services, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which Capture2 controls and operates the Hosted Services. Customer will ensure that any use of the Hosted Services by Customer’s Users is in accordance with the terms of these Terms.

 

14. GENERAL PROVISIONS.
15. 1. If Customer is a federal government entity, Capture2 provides the Hosted Services, including related software and technology, for ultimate federal government end use solely in accordance with the following:  Technical data and computer software rights related to the Hosted Services include only those rights customarily provided to the public as set forth in these Terms.  The license rights hereunder are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).  If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included as part of these Terms or in connection with the corresponding Subscription Agreement.
    2. Either Party may include the other’s name and logo in Customer or vendor lists.
    3. Any action related to these Terms will be governed exclusively by the internal laws of the state of California, without regard for its conflicts of laws rules, and all disputes hereunder shall be subject to the exclusive jurisdiction of the state or federal courts located in San Diego County, California.  The Parties hereby irrevocably consent to the jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
    4. These Terms, together with any applicable Terms of Service, and Subscription Agreement(s) (including any documents referenced therein) and any addendums thereof represent the Parties’ entire understanding relating to the use of the Hosted Services and supersedes any prior or contemporaneous, conflicting or additional, communications. No amendment or waiver of any provision of these Terms shall be effective unless in writing and signed by authorized representatives of the Parties hereto.  Notwithstanding any language to the contrary therein, no terms stated in any order document (other than a Subscription Agreement or other mutually executed order document expressly incorporated herein) shall be incorporated into these Terms, and all such terms shall be void. In the event that there is a conflict between these Terms and the Terms of Service, these Terms shall control.
    5. If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
    6. No joint venture, partnership, employment, or agency relationship exists between Capture2 and Customer as a result of these Terms or use of the Hosted Services.
    7. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld).  Notwithstanding the foregoing, (i) either Party may assign these Terms in its entirety (including all Subscription Agreements hereunder) to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other Party; and (ii) Capture2 may assign its rights and obligations relating to implementation of the Hosted Services to an Affiliate or partner.  Any attempted assignment in breach of this section shall be void.  These Terms shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
    8. Capture2 reserves the right to use (or otherwise contract with) third-parties in the provision of the Hosted Services (or any portion thereof) hereunder and Capture2 will be responsible for the acts or omissions of such third parties.
    9. Neither Party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such Party’s employees), internet or other Hosted Services disruptions involving hardware, software or power systems not within such Party’s possession or reasonable control, and denial of Hosted Services attacks.
    10. Capture2 may give notice by means of a Customer Notification on the Hosted Services; electronic mail to Customer’s e-mail address on record in Capture2’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address on the Hosted Services. Customer may give notice to Capture2 at any time by letter sent by email to [email protected] or by letter delivered first class mail to Capture2 at 2820 Camino Del Rio S, Suite 200, San Diego, California 92108. All notices shall be deemed to have been given five days after mailing (if sent by first class mail),  24 hours after sending by confirmed facsimile, or if it is delivered by email, when Capture2, by an email sent to the email address for the Customer stated in the corresponding Subscription Agreement or by a notice delivered by another method in accordance with this section 14.J, acknowledges having received that email, with an automatic “read receipt” not constituting acknowledgment of an email for purposes of this section 14.J.
    11. The failure of either Party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. In the event of any litigation of any controversy or dispute arising out of or in connection with these Terms, its interpretation, its performance, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. Any rights not expressly granted herein are reserved by Capture2.
    12. Capture2 reserves the right to alter the terms of these Terms at any time. If the alterations constitute a “material change” to the Agreement, Capture2 will notify Customer. What constitutes a “material change” will be determined at Capture2’s sole discretion, in good faith and using common sense and reasonable judgment, but will only include those changes that materially affect Customer’s use of the Hosted Services or rights under these Terms. Notice will be considered to have been delivered once sent.  Customer agrees to review the latest version of these Terms on Capture2’s website periodically to remain aware of any non-material modifications to the Terms about which Customer is not alerted by Capture2.  The Terms available on the website will be dated so as to make clear what version is currently in force.  Any use of the Hosted Services after alteration of the Terms will constitute acceptance by Customer of such changes. Customer’s sole remedy should Customer not agree with the altered Terms shall be to cease Customer’s use of the Hosted Services and to comply with Customer’s termination obligations outlined in Section 11 of these Terms.

 

Last Updated: June 24th, 2020