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SERVICE TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS (THESE “TERMS”) GOVERN YOUR ACCESS AND USE OF THE SERVICES (AS DEFINED BELOW) PROVIDED BY CAPTRICITY, INC. (“CAPTRICITY”) VIA ITS WEBSITE LOCATED AT HTTP://WWW.CAPTRICITY.COM (THE “SITE”). IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).
BY CLICKING ON THE “ACCEPT” BUTTON BELOW OR BY USING THE SERVICES, YOU ACKNOWLEDGE AND AGREE THAT YOU: (A) HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW; (B) UNDERSTAND ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW; AND (C) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW.
IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS, CAPTRICITY IS UNWILLING TO PERMIT YOU TO USE THE SERVICES.
THE “EFFECTIVE DATE” OF THESE TERMS IS THE DATE UPON WHICH YOU FIRST USE THE SERVICES. FOR THE PURPOSE OF THESE TERMS, YOU AND, IF APPLICABLE, SUCH COMPANY (OR OTHER ENTITY) CONSTITUTES “CUSTOMER”.
“Customer Data” means any and all documents and other materials uploaded by Customer to Captricity’s system in order to use the Services.
“Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
“Laws” means federal, national, state, provincial, municipal and local laws, regulations, rules, judicial decrees, decisions and judgments in each and every jurisdiction applicable to Customer, Captricity, the subject matter of these Terms and/or the Services.
“Product” means the results of the Customer Data following the application of the Services.
“Services” means the software-as-a-service that converts documents and related materials into structured usable data made available via the Site.
“Site” means the software-as-a-service that converts documents and related materials into structured usable data.
GRANTS AND RESTRICTIONS
Subject to the terms and conditions of these Terms, Captricity hereby grants to Customer a non-exclusive, non-transferable and revocable right to access and use the Services.
Customer hereby grants to Captricity a non-exclusive right to access, use, reproduce, modify and create derivative works of the Customer Data solely in order to provide the Services.
Unless expressly set forth in these Terms, Customer will not, and will not allow any third party to: (a) disclose to any third party any performance information or analysis relating to the Services; (b) sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Services (any component thereof) or any materials contained in the Site; (c) distribute, publicly perform or publicly display any materials contained in the Site; (d) use any data mining, robots or similar data gathering or extraction methods with respect to the Site or the Services; (e) download (other than the page caching) any portion of the Site (including, but not limited to, any materials contained in the Site); (f) use of the Site, the materials contained in the Site or the Services other than for its intended purpose; and (g) remove, obscure or alter any notice of copyright, trademark or other proprietary right appearing on or in the Site or the Services. Customer will permit Captricity, at all reasonable times, and at Captricity’s expense, to verify that the use of the Services is in compliance with the terms of these Terms.
Captricity will use commercially reasonable efforts to provide the Services to Customer. Notwithstanding any terms to the contrary in these Terms, if Customer’s use of the Services overburdens or impairs the functioning of the Services in any manner, Captricity may prohibit Customer from using the Services on such occasion or entirely.
Customer will upload the Customer Data to Captricity’s system in accordance with the Captricity’s service procedures set forth on Site and incorporated into these Terms by reference.
Customer must use reasonable security precautions in connection with Customer’s use of the Services. Customer must comply with the Laws with respect to Customer’s use of the Services. Customer must cooperate with Captricity’s reasonable investigation of downtime/outages, security problems and any suspected breach of these Terms.
Customer agrees to: (a) provide accurate, current and complete information about Customer as may be prompted by any signup, login and/or registration forms on the Site (“Registration Data”); (b) maintain the security of Customer password and identification; (c) maintain and promptly update the Registration Data, and any other information Customer provides to Captricity, in order to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information Customer provides to Captricity.
Customer agrees not to upload to, transmit, distribute, store, create or otherwise publish through the Site any of the following:
Material that may infringe or violate any patent, trademark, trade secret, copyright, right of privacy, right of publicity or other intellectual or other right of any party;
Viruses, corrupted data or other harmful, disruptive or destructive files; and
Material that is libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, violent, harassing, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive or otherwise objectionable.
Customer further agrees not to:
Use the Site or the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Site or the Services or that could damage, disable, overburden or impair the functioning of the Site or the Services in any manner;
Use the Site or the Services for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Terms or any other rules or polices established from time-to-time by Captricity; and
Circumvent or attempt to circumvent any filtering, security measures or other features designed to protect the Site, the Services, users of the Site or the Services or third parties.
PRICING AND PAYMENT
Please refer to the Terms of Sale (http://www.captricity.com/terms-of-sale) for the terms, conditions and policies applicable to your purchase of the Services. The Terms of Sale are incorporated into these Terms by reference.
Customer represents and warrants that: (a) all Customer Data is either the sole property of Customer or has been collected from a third party by Customer in accordance with Customer’s privacy guidelines; (b) Customer’s privacy guidelines comply with all applicable Laws; (c) Customer has obtained all consents required by the applicable Laws to transfer all of the Customer Data to Captricity for use of the Services and storage by Captricity within the United States; (d) all of Customer’s registration and account information is true, accurate and complete; and (e) Customer will maintain the security of Customer’s password.
Notwithstanding any terms to the contrary in these Terms, Captricity may disclose Customer Data: (a) as required by any applicable Laws; or (b) in response to a subpoena or other compulsory legal process.
Captricity is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services. Customer is responsible for: (a) the use of the Services by any employee of Customer or any person to whom Customer has given access to the Services; and (b) any person who gains access to Customer Data or the Services as a result of Customer’s failure to use reasonable security precautions (even if such use was not authorized by Customer).
As between the parties and subject to the grants in these Terms: (a) Customer owns all right, title and interest in and to the Customer Data and any and all Intellectual Property Rights embodied therein; and (b) Captricity owns all right, title and interest in and to the Services (including, but not limited to, the software components of the Services), the Site, the Services and all content and other materials on the Site and any and all Intellectual Property Rights embodied therein. This provision will survive the use of the Service.
CONFIDENTIALITY AND PUBLICITY
“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by Captricity to Customer concerning or related to these Terms or Captricity (whether before, on or after the Effective Date) which Captricity knows or should know, given the facts and circumstances surrounding the disclosure of the information by Captricity, is confidential information of Captricity. Confidential Information includes, but is not limited to, the Services, the components of the business plans, financial plans, know-how, customer information, strategies and other similar information. Customer will, during the term of these Terms and thereafter, maintain in confidence the Confidential Information and will not use such Confidential Information except as expressly permitted herein. Notwithstanding any terms to the contrary in these Terms, any suggestions, comments or other feedback provided by Customer to Captricity with respect to the Services or Captricity (collectively, “Feedback”) will constitute Confidential Information. Further, Captricity will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise. Customer acknowledges and agrees that Captricity may use Customer’s name and logo on Captricity’s site and publicly-available printed materials identifying Customer as a customer of Captricity. This provision will survive the use of the Service.
THIRD PARTY CONTENT
Captricity may provide third party content on the Service and may provide links to website and content of third parties (collectively the “Third Party Content”) as a service to those interested in this information. Captricity does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content including, but not limited to, its accuracy or completeness. You acknowledge and agree that Captricity is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk. This provision will survive the use of the Service.
The Captricity logos or slogan contained in the Site (or made available via the Services) are trademarks of Captricity and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Captricity or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “Captricity” or any other name, trademark or product or service name of Captricity without our prior written permission. In addition, the look and feel of the Site and the Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Captricity and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site (or made available via the Services) are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us. This provision will survive the use of the Service.
CUSTOMER ACKNOWLEDGES AND AGREES THAT: (A) the Services require access to and use of the Internet; (B) CAPTRICITY IS NOT respONSIBLE for operating or maintaining Customer servers and Customer’s connection to the Internet to access and utilize the Services; AND (C) THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER DATA. CAPTRICITY PROVIDEs THE SERVICES and the site ON AN “AS IS” and “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. CAPTRICITY DOes NOT WARRANT THAT THE SERVICES or the site WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. CAPTRICITY AND ITS SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SITE AND THE SERVICES WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT CAPTRICITY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS RELIED ON NO WARRANTIES. THIS PROVISION WILL SURVIVE THE USE OF THE SERVICE.
Customer, at its sole expense, will defend, indemnify and hold Captricity and its directors, officers, shareholders, employees, consultants, affiliates and agents (collectively, “Captricity Indemnitees”) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees and costs, expert witnesses’ costs and fees, penalties, interest and disbursements) arising from or relating to any suit, action, or proceeding against any Captricity Indemnitees, whether successful or not, caused by, arising out of, resulting from, attributable to or in any way incidental to: (a) any breach by Customer of these Terms (including, but not limited to, any breach by Customer of its representation or warranties); or (b) Customer Data (including, but not limited to, any violation, misappropriation or infringement of any third party’s Intellectual Property Rights or rights of privacy or right of publicity). This provision will survive the use of the Service.
LIMITATION OF LIABILITY
IN NO EVENT WILL: (A) CAPTRICITY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SERVICES, THE SITE OR THE THIRD PARTY CONTENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) CAPTRICITY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICES, THE SITE OR THE THIRD PARTY CONTENT EXCEED THE AMOUNT PAID BY CUSTOMER TO CAPTRICITY UNDER THESE TERMS (IF ANYTHING). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THIS PROVISION WILL SURVIVE THE USE OF THE SERVICE.
TERM, TERMINATION & EFFECTS OF TERMINATION
Unless terminated as set forth in these Terms, the term of these Terms will be for the beta period determined by Captricity in its sole discretion. Captricity may terminate these Terms, for cause, if Customer breaches these Terms. Except as otherwise provided in these Terms, upon the termination of these Terms: (a) all licenses granted to Customer herein will terminate; and (b) Captricity may delete all Customer Data and related Product.
These Terms will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The parties agree that any action at law or in equity arising out of or relating to these Terms will be filed only in the state and federal courts located in Alameda County, California and the parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms.
Neither these Terms nor any right or duty under these Terms may be transferred, assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of Captricity, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
If any provision of these Terms is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of these Terms will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by these Terms is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
Captricity will not be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service by any service providers being used by Captricity, the Internet, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.
No modification, addition or deletion, or waiver of any rights under these Terms will be binding on a party unless made in an agreement clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
Notwithstanding any terms to the contrary in these Terms, Captricity may choose to electronically deliver all communications with Customer, which may include: (a) email to Customer’s email address indicated in Customer’s communications with Captricity or upon registration with the Site; or (b) posting messages that are displayed to Customer when Customer logs into or accesses the Site. Captricity’s electronic communications to Customer may transmit or convey information about action taken on Customer’s request, portions of Customer’s request that may be incomplete or require additional explanation, any notices required under applicable law and any other notices. Customer agrees to do business electronically with Captricity, and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned provided electronically satisfies any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received the day of receipt as evidenced by such email.
The provision will survive the use of the Service.