Subscription Terms

 

This is a contractual Agreement between you (the Customer) and Capture2. It describes the services Capture2 will provide to you and other aspects of our business relationship. It is a legal document and the terms identified in this document are so important that we are unable to provide these services unless you agree to them. By using the Capture2 Subscription Service (“Services”), you are agreeing to these terms.

USE OF SERVICES

Acceptable Use Policy: Customer is responsible for use of the Services by those to whom Customer provides access. At any time, Capture2 reserves the right to deactivate Customer’s Subscription (along with access to the Service by some or all Authorized Users associated with the Customer’s Subscription) if that Customer’s use of the Services is found or reasonably suspected, in Capture2’s judgment, to violate the use restrictions set forth below.

Use Restrictions:  Customer agrees not to; (1) sell, lease, assign, sub-license, or otherwise transfer its rights to access and use the Services, (2) disclose, display or grant access to any part of the Services to any person or entity who is not an Authorized User, including, without limitation, any consultant or customer of Customer, (3) copy, modify, publish, sell, export, distribute, transfer or perform, or prepare derivative works of, reverse engineer, decompile or otherwise attempt to extract the source code or source data from the Services except and only to the extent permitted or required by law, (4) use or make the Services available on a service bureau or time sharing basis, (5) collect any information from the Services through the use of “web bots,” “scraping,” “crawling,” “spidering,” or any other method not explicitly approved in writing by Capture2 , provide, post, or transmit any data that infringes or violates any Intellectual Property Rights or publicity/privacy rights, or that contains any viruses or programming routines that may damage, interrupt or appropriate the Subscription or Services, (6) use the Services or Documentation to create any service offering, computer software program, training materials or user documentation that is substantially similar to the Services or Documentation, (7) use or facilitate use of the Services in any way that is harassing, harmful, obscene, threatening, libelous, or otherwise tortious, or for illegal, abusive or unethical activities (including violations of law or privacy, hacking or computer viruses), (8) use the Services (or any portion thereof) to perform competitive analysis on third-parties (which may or may not also be users of the Capture2 Subscription Service); and/or (9) permit any Authorized User or other third party to do any of the foregoing.

AGREEMENT TERMS

Agreement Terms: This Agreement is effective as of the Effective Date agreed upon in the Online or Emailed Subscription Registration Form and will expire at the end of all Subscription Periods specified in the Online or Emailed Subscription Registration Form, unless otherwise terminated as set forth below. Unless otherwise specified in Capture2’s Online or Emailed Subscription Registration Form, Subscription(s) begin on the Effective Date of the applicable Online or Emailed Order Form. The Online or Emailed Subscription Registration Form is a separate document specifying Customer’s Subscription to the Services and other order-specific terms that take precedence over any conflicting terms in this legal document.

Upon the Effective Date and subject to the terms of this Agreement and satisfaction of Customer’s payment obligations, Capture2 grants to Customer and its Authorized Users a non-exclusive, non-transferable and non-sublicenseable (except as provided in this Agreement), right to access and use the Services identified in Capture2 Online or Emailed Subscription Registration Form during the Subscription Period. Customer shall have no right to receive any object code or source code relating to the Services. Customer grants to Capture2 a non-exclusive, non-transferable right to access and use Customer Data as reasonably required to provide the Services to Customer and its Authorized Users. Customer shall not copy or incorporate any portion of the Documentation or create “screen shots” of the Services except for use as training materials and only for Customer’s internal use, provided that all such Documentation and Screen shots of the Services bear copyright notice “©Capture2 2018” on each page.

Order Renewal: Unless either party has given the other party written notice of non-renewal of Services at least thirty (30) days prior to the end of a respective Subscription Period or renewal Subscription Period, each Subscription will renew for an additional period of twelve (12) months at then-current Subscription fees. However, the parties may agree in writing to renew a Subscription for longer periods and/or at other mutually agreed upon rates.

Termination: Either party may terminate this Agreement as a result of a material breach by the other party, if (1) the non-breaching party provides written notice to the other party of the breach, and (2) such breach is not cured within fifteen (15) days of receipt of notice. However, Capture2Proposal may terminate this Agreement immediately upon written notification to Customer in the case of breach of the Use of Services Section. Upon termination by Capture2Proposal for material breach by Customer, all unpaid fees are immediately due and payable. Upon termination by Customer for material breach by Capture2, Customer shall be entitled to a refund of any prepaid, unused Subscription fees from date of termination.

Upon Customer’s written request made within thirty (30) days of termination or expiration of a Subscription or this Agreement, Capture2 will return to Customer a single copy of all Customer Data in Capture2Proposal’s then-current industry standard data extract format for a fee determined by Capture2Proposal. Additional Customer Data copies shall also be available for a fee. After such thirty (30) day period, Capture2 shall have no obligation to maintain or provide any Customer Data and shall, unless legally prohibited, delete all Customer Data in its possession or under its control. Notwithstanding the foregoing, Capture2Proposal may retain Customer Data in backup media for an additional period of up to twelve (12) months, or longer if required by law.

Modification to Subscription Agreement: Customer may add new or expand existing Subscriptions, which will be made coterminous with the anniversary date of the then-current Subscription Period and the fees will be prorated.

AUTHORIZED USERS

Authorized User Access Controls: Each Authorized User is issued a user ID and password which may not be shared or used by more than one person. However, a user ID and password may be reassigned from time to time to a new Authorized User replacing a former Authorized User. Customer will notify Capture2Proposal when Customer no longer employs an Authorized User or if an Authorized User should otherwise be denied access to the Services.

Additional Authorized Users: Customer may add Authorized Users during a Subscription Period. The Subscription Period for any additional Authorized User Subscription shall end with the Customer’s current Subscription Period for that Service and the Subscription fee shall be prorated accordingly. Except where the Subscription is a flat fee or the Order Form indicates otherwise, Customer agrees to notify Capture2Proposal if the number of Authorized Users increases and to pay the additional Subscription fees as specified in the Online or Emailed Subscription Registration Form for those additional Authorized Users. Unless otherwise provided, the number of Authorized Users cannot be reduced during any Subscription Period.

Customer may not use or permit use of the Services or Documentation for more than the Customer’s current number of Authorized Users as specified in the applicable Online or Emailed Subscription Registration Form as may be amended from time to time, and may not permit use of the Services by anyone other than Customer’s Authorized Users who may be (1) a Customer’s employee, or (2) employees of an Affiliate. Authorized Users for Capture2 include; employees, consultants, contractors, teaming partners or agents designated by Customer as Authorized Users.

System Updates:  Capture2Proposal regularly updates the system to add, enhance or replace features and functionality. Some changes to the Services may occur automatically, while others may require Customer to schedule and implement the changes.

FEES AND PAYMENT

Fees: Unless the Order Form specifies otherwise, Customer shall pay (1) the initial fees for Information Services within fifteen (15) days of the date of the applicable Online or Emailed Subscription Registration Form, and (2) the initial fees for SaaS Services within thirty (30) days of the invoice date. Renewal fees will be at Capture2Proposal’s then-current rates and will be due within fifteen (15) days of the invoice date. All fees are in US Dollars. All payments made under this Agreement are non-refundable, except as specifically provided in this Agreement. If Customer separately arranges with a third party to make some or all payments to Capture2Proposal under this Agreement, Customer must notify Capture2 l and provide reasonable documentation before Capture2 will invoice a third party directly. Capture2 will not re-issue invoices if Capture2 does not receive such notice and documentation prior to invoicing. If the third party fails to make payment when due, Customer shall promptly pay Capture2.

Disputed Invoices: Customer will notify Capture2 within fifteen (15) days after the invoice date if there is a dispute about that invoice. Customer shall pay the undisputed portion of the invoice in full when due and notify Capture2 in writing as to the nature and substance of any disputed portion.

Taxes: Fees, costs and expenses described in this Agreement do not include any sales, use, personal property, duty, levy or similar governance charge, value added or good/services taxes. Capture2 may include applicable taxes as separate items on Customer’s invoice, and Customer shall be responsible to pay and/or reimburse Capture2 for all taxes (other than taxes based on Capture2’s income), unless Customer has provided adequate evidence of exemption upon execution of this Agreement. If withholding taxes are imposed by any government, Customer shall remit such taxes in accordance with applicable law, gross up the applicable payment amounts so that Capture2 receives the full amount of fees invoiced, and provide Capture2 with applicable evidence of withholding.

Late Payments: Capture2 may charge interest at the rate of one percent (1%) per month (eighteen percent (12%) per annum), or at the highest rate allowed by law, whichever is less, from the date due until paid. Capture2 may suspend Subscriptions, Support, Consulting Services or other performance if Customer fails to make full payment of any undisputed amount owed under this Agreement within fifteen (15) days after written notice from Capture2. Capture2 may charge its then-current setup fee to restore a Subscription after any suspension.

INTELLECTUAL PROPERTY RIGHTS

Capture2 owns; (1) all Intellectual Property Rights in or relating to the Services, whether or not those rights are registered,(2) any software and documentation developed and delivered in the course of providing Consulting Services, (3) Customer’s comments, suggestions or other feedback regarding Capture2 products and services, and (4) any and all enhancements, modifications, derivative works and corrections that are made of or to the Services or the software used to provide the Services, which will be considered part of the “Services” for the purposes of this Agreement.

Customer agrees not; (1) to remove or replace any Mark from the screens on which the Services are viewed or accessed or any associated materials without Capture2 express written consent, and (2) to reproduce any and all Marks on any copy or portion of any associated materials. Customer may not modify the Documentation except to the extent necessary to reflect more closely Customer’s operations, provided, however, that Capture2 shall retain all rights in any modified Documentation, which shall be considered Documentation with respect to Customer’s rights, and each party shall retain its confidentiality obligations with respect to any Confidential Information in the modified Documentation. Customer retains all rights, title and interest in and to Customer’s own information, including its Confidential Information and Customer Data.

CONFIDENTIALITY

Any information disclosed by one party (“Disclosing Party”) to the other party (“Recipient”) in connection with this Agreement that is marked confidential or that due to its character and nature, a reasonable person under like circumstances would treat as confidential (the “Confidential Information”) will be protected and held in confidence by the Recipient. Confidential Information will be used only for the purposes of this Agreement. Recipient shall disclose Confidential Information only to the Recipient’s employees, contractors, or business partners which are bound by confidentiality obligations no less stringent than these prior to any disclosure on a “need to know” basis. Confidential Information does not include information that: (1) is already known to the other party at the time of disclosure; (2) is independently developed without benefit of the other’s Confidential Information; (3) is or becomes publicly known through no wrongful act or failure of the Recipient; or (4) is received from a third party that is not under an obligation of confidentiality. Recipient agrees to protect the Confidential Information at all times and in the same manner as it protects the confidentiality of its own proprietary and confidential material of similar kind, but in no event with less than a reasonable standard of care. A Recipient may disclose Confidential Information to the extent required by law, provided that the Recipient provides the Disclosing Party with notice as soon as reasonably practicable to allow the Disclosing Party an opportunity to respond to such requirement, and provided further that such disclosure does not relieve Recipient of its confidentiality obligations with respect to any other party.

Upon the request of Disclosing Party, the Recipient shall promptly destroy or return to the Disclosing Party all copies of the Confidential Information and any documents derived from it. This obligation to return or destroy materials or copies thereof does not extend to automatically generated computer back-up or archival copies generated in the ordinary course of Recipient’s information systems procedures, provided that Recipient shall make no further use of Confidential Information contained in those copies. Except as to the confidentiality of trade secrets, these confidentiality restrictions and obligations will terminate two years after the expiration or termination of the Agreement. The Recipient may return any Confidential Information to the Disclosing Party at any time.

PUBLICITY

Neither party will issue any public materials that refer to the other party, this Agreement, or the subscribed Services without the other party’s prior written consent. However, Capture2 may identify Customer on its client list and may use Customer’s name and logo as well as a mutually-agreed general description of the nature of the relationship on its website and in promotional materials, presentations, and proposals to current and prospective clients. Either party may identify the other party or disclose the existence of this Agreement to its attorneys, auditors and in connection with regulatory filings.

CUSTOMER DATA

Ownership:  Customer owns all rights, title and interest in and to Customer Data and is solely responsible for the accuracy, integrity, quality, legality, reliability, appropriateness of and copyright permissions of any Customer Data and for adopting procedures to identify and correct errors and omissions in Customer Data.

Customer Obligations: Customer agrees that: (1) Customer Data has been collected, processed and provided to Capture2 l in accordance with all applicable U.S. and international laws, including applicable data protection legislation, and (2) Customer has provided any required notices and obtained any required consents from Authorized Users concerning the collection, use, processing, transfer and disclosure of personal information relating to Customer’s use of the Services and Capture2’s provision of the Services. Customer is the data controller for the purposes of this Agreement.

Capture2  Obligations:  Capture2 will handle Customer Data only in accordance with this Agreement, its privacy policy, which may be updated from time to time, and any lawful instructions reasonably given by Customer. Capture2 is the data processor for the purposes of this Agreement and may move Customer Data to locations around the world as necessary to perform obligations under this Agreement.

Security:  Each party will implement reasonable and appropriate measures to protect Customer Data and prevent any unauthorized person or entity from gaining access thereto. Customer is responsible for verifying that its Authorized Users accessing Customer Data are properly authorized to do so. Except as stated herein, Capture2 has no responsibility for unauthorized access to the Services. Each party will promptly notify the other if that party has actual knowledge of unauthorized access to and/or use of Customer Data or passwords and use reasonable efforts to take prompt remedial measures to rectify such unauthorized access.

Content of and Direction for Customer Data: Customer agrees that Capture2 is reliant on Customer for direction as to the extent to which Capture2 is entitled to use and process Customer Data through the Services. Consequently, Capture2 will not be liable for any claim arising from any action or omission by Capture2 to the extent that such action or omission resulted directly from Capture2’s provision of the Services consistent with this Agreement or Customer’s instructions. Customer is solely responsible for any and all Customer Data that Customer or any Authorized User stores, transmits, displays, or otherwise uses in connection with the Services.

Intellectual Property: Capture2 respects the intellectual property and other proprietary rights of others and may remove content from the Services that infringes third party copyrights or other intellectual property rights and suspend the user ID of any user who uses the Services in violation of copyright law or other laws governing intellectual property rights, and where appropriate, blocking such user’s access to the Services.

USE OF STATISTICAL DATA

Without limiting Customer’s ownership rights in Customer Data, Customer acknowledges and agrees that Capture2 shall have the right to utilize data capture, syndication and analysis tools and other similar tools to extract, compile, synthesize and analyze any non-personally and non-Customer identifiable data or information resulting from Customer’s use of the Services (“Statistical Data”). Statistical Data may be collected by Capture2 for any lawful business purpose without a duty of accounting to Customer, provided that the Statistical Data is used only in an aggregated form without specifically identifying the source of the Statistical Data.

THIRD PARTY CLAIMS

Capture2 will indemnify, defend and hold harmless Customer against any damages finally awarded resulting from a third party’s claim (“Claim”) that the Services violate that third party’s Intellectual Property Rights, provided that Customer has used the Services strictly in accordance with the terms of this Agreement, and only if Customer notifies Capture2 promptly in writing of such Claim and gives Capture2 full control of and assistance with the defense of such Claim. Capture2 shall not be responsible for Customer’s compromise of such a Claim without Capture2 written consent. If a Claim is made or appears possible, Capture2 may, at its option, secure for Customer the right to continue to use the Services, modify or replace the Services so that they are non-infringing, or, if neither of the foregoing options is available in Capture2 judgment, terminate this Agreement and refund Customer any unamortized pre-paid fees for use of the infringing Services. Capture2 shall have no liability or obligation with respect to any Claim if the infringement is caused by: (1) modifications made according to Customer’s specifications, (2) modifications by any person not authorized in writing by Capture2 , (3) the combination, operation or use of the Services with other product(s) or service(s) not supplied by Capture2 , (4) Customer’s failure to comply with Capture2’s direction to cease any activity that in Capture2’s reasonable judgment may infringe a third party’s Intellectual Property Rights, or (5) third party content.

ENTIRE OBLIGATION TO CUSTOMER REGARDING ANY THIRD PARTY CLAIM

Customer will indemnify, defend and hold harmless Capture2 against any damages finally awarded resulting from a Claim (including a Claim by an Authorized User) that (1) Customer Data, or Customer’s misuse of the Services, harms any person, violates any law, or violates that third party’s Intellectual Property Rights, privacy, or other rights, (2) Customer has breached any Third Party Terms, or (3) Customer has violated the rights of the third party in posting, transmitting, storing, retaining or deleting of Customer Data, only if Capture2 l notifies Customer promptly in writing of such Claim and gives Customer full control of and assistance for the defense of such Claim. Customer shall not be responsible for Capture2 compromise of such a Claim without Customer’s written consent.

GOVERNING LAW AND DISPUTE RESOLUTION

Governing Law: This Agreement will be interpreted and construed in accordance with the laws of California without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

Litigation Rights: Either party may seek temporary or permanent injunctive relief from any court of competent jurisdiction to protect its Confidential Information, non-solicitation rights, and Intellectual Property Rights, regardless of the arbitration requirements. Capture2 reserves the right to pursue collections activity or legal action in a court of competent jurisdiction to compel payment, regardless of the arbitration requirements, and in such a case, Capture2 shall be entitled to recover its costs and reasonable attorneys’ fees (including the allocable costs of in-house counsel).

Binding Arbitration: Any dispute that cannot be resolved by the parties will be settled by final and binding arbitration in accordance with the American Arbitration Association (“AAA”) rules, and either party may compel arbitration or enforce an arbitration award in any court of competent jurisdiction and recover its related costs and expenses. The arbitrators shall award appropriate fees and costs to the prevailing party.

LIMITED WARRANTIES

Software as a Service (SaaS) Services Offering: Capture2 warrants that the SaaS Services will substantially conform to the Documentation under normal use and circumstances. During the Subscription Period, at no additional cost to Customer and as Customer’s sole and exclusive remedy for failure to meet this limited warranty, Capture2 will correct any material fault in the Capture2 software used to provide the Services (“Defect”) in accordance with the Support guidelines, provided that Customer promptly notifies Capture2 in writing upon discovery of any such Defect and Capture2 investigation discloses that such Defect exists. This limited warranty will be void if the Defect is caused by (1) the use or operation of the Services with an application or in an environment other than that described in the Documentation or recommended in writing by Capture2 or (2) modifications to the Services that were not made by Capture2.

Other Services: Services other than the SaaS Services are available strictly on an “as is,” “as available” basis, and Customer’s use of such Services is at Customer’s sole risk. Certain information provided to Customer through such Services is obtained from publicly available sources, the accuracy of which Capture2 does not verify, and Customer acknowledges that such information may contain inaccuracies or errors.

LIMITED WARRANTIES DISCLAIMER

EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED IN THIS SECTION, CAPTURE2 MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. CAPTURE2PROPOSAL DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE TIMELY, COMPLETE, RELIABLE, ADEQUATE, ACCURATE, USEFUL, SECURE OR ERROR-FREE. ALL CAPTURE2 APPLICATIONS AND SOFTWARE DOWNLOADS ARE PROVIDED AS-IS WITH NO WARRANTY AND CAPTURE2 ACCEPTS NO LIABILITY FOR ANY DAMAGES DIRECTLY OR INDIRECTLY CAUSED BY SUCH APPLICATIONS OR DOWNLOADS.

LIMITATION OF LIABILITY STATEMENT AND DISCLAIMER

EXCEPT FOR CUSTOMER’S VIOLATION OF THE USE OF SERVICES TERMS OR INFRINGEMENT OF CAPTURE2PROPOSAL’S INTELLECTUAL PROPERTY RIGHTS, OR THIRD PARTY CLAIMS ARISING OUT OF CUSTOMER’S BREACH OF THE THIRD PARTY TERMS, (1) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, AND (2) THE TOTAL LIABILITY OF EITHER PARTY ON ANY CLAIM ARISING OUT OF ANY SERVICES SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO CAPTURE2PROPOSAL IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY. THIS SECTION APPLIES TO DAMAGES ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, INCLUDING WITHOUT LIMITATION CONTRACT, WARRANTY, STRICT LIABILITY, TORT, OR NEGLIGENCE, EVEN IF SUCH LOSS OR DAMAGE WAS FORESEEABLE OR CONTEMPLATED BY THE PARTIES. YOU FURTHER UNDERSTAND AND AGREE THAT CAPTURE2 DISCLAIMS ANY LOSS OR LIABILITY RESULTING FROM:

  • A DISTRIBUTED DENIAL-OF-SERVICE ATTACH, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE CAPTURE2 WEBSITE OR DOWNLOADING OF ANY MATERIAL POSTED ON IT
  • THE INADVERTENT DISCLOSURE OR THEFT OF YOUR PERSONAL INFORMATION;
  • ACCESS DELAYS OR INTERRUPTIONS TO THE CAPTURE2PROPOSAL WEBSITE AND SERVICES;
  • THE UNAUTHORIZED USE OF YOUR CAPTURE2PROPOSAL ACCOUNT;

USE OF COOKIES

Capture2 uses cookies for usage tracking purposes and statistical analysis, which helps Capture2 to improve the Services by giving Capture2 some insight into how the Services are being used. Please refer to privacy policy for further information on Capture2’s use of cookies. Customer consents to such use of cookies, and represents and warrants that it has provided adequate notice to its Authorized Users of the Services of, and obtained their informed consent to, the use of cookies by the Services in accordance with applicable Data Protection Laws. Customer is responsible for providing appropriate information and obtaining any required consent from its users of the Services in accordance with applicable Data Protection Laws prior to any processing of personal data by and through the Services.

MISCELLANEOUS

  • Assignment:Customer may not assign any of its rights or obligations under or sublicense this Agreement without Capture2 prior written consent.
  • Compliance with Laws: Each party will be responsible for compliance with all legal requirements related to its use of the Services, including those related to the disclosure of data.
  • Export Control:Customer shall comply with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business. Customer represents and warrants that Customer is not located 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 that Customer is not listed on any U.S. Government list of prohibited or restricted parties.
  • E-mail Communications: Each party shall comply with the U.S. CAN-SPAM Act of 2003, 15 U.S.C. §§ 7701-7713 when applicable.
  • Excusable Delays:In no event shall either party be liable to the other for any delay or failure to perform its obligations under this Agreement (excluding payment obligations) due to causes beyond the reasonable control of that party, including acts of a government and severe weather conditions.
  • Counterparts: This Agreement may be executed in several counterparts each of which when executed shall be deemed to be an original.
  • Independent Contractor.: The parties are independent contractors and may not make commitments or representations on behalf of one another.
  • Right to Enforce:Any person who is not a party to this Agreement shall have no right to enforce any term of this Agreement.
  • Notices:Except for notices sent to Customer as part of Capture2’s general customer base, notices to Customer shall be provided to Customer’s notice address in the initial Order Form. Notices to Capture2 shall be sent via email to support@Capture2.com.
  • Severability:If a court holds any provision(s) of this Agreement to be illegal or unenforceable, the remainder of this Agreement will remain valid and enforceable.
  • Survival:Provisions anywhere in the Agreement regarding payment, termination, proprietary rights, Intellectual Property Rights, warranties, limitations of liability, governing law, dispute resolution, confidentiality, severability, export control, and waivers will survive the expiration or termination of this Agreement.
  • Waiver:A waiver of any breach of this Agreement is not a waiver of any other breach of this Agreement. Any waiver must be in writing and signed by an authorized representative of the waiving party.
  • Entire Agreement:This Agreement, including any attachments identified as incorporated into this Agreement, is the entire agreement between Customer and Capture2 relating to the Services and supersedes all prior or contemporaneous oral or written communications. Notwithstanding the foregoing, this Agreement does not affect any license and services agreement between the parties. This Agreement will not be modified by the terms of any purchase order, or other instrument documenting a transaction that is issued by Customer in connection with this Agreement, nor by any other act, document, usage, custom, or course of dealing.

DEFINITIONS

  • “Authorized User” means an individual who is authorized in accordance with this Agreement by Customer to access and use the Services. Specific categories of Authorized Users are described in the Services-specific terms and conditions and the Order Form.
  • “Effective Date” means the date upon which this Agreement or an Order Form, as applicable, becomes effective.
  • “Evaluation Services” means the Services as made available to Customer on a trial basis for a period of time and for the fees specified in the Order Form.
  • “Intellectual Property Rights” means all copyrights, moral rights, database rights, patents, patentable ideas, inventions, patent applications, patent registrations, patent renewals, derivative works, trade secrets, know-how, Marks, goodwill, all rights in the nature of unfair competition rights, and rights to sue in passing off, and confidentiality or any other similar proprietary right arising or enforceable under applicable law.
  • “Customer Data” means all electronic data or information that Customer or any Authorized User loads or enters into the Services and all results from processing such data, including compilations and derivative works.
  • “Affiliate” means any entity that is controlled by Customer or is under common control with Customer through at least a 51% ownership (or through board or directors’ control if a not-for-profit entity).
  • “Documentation” means the technical documentation applicable to the Services, including training guides, manuals, user guides and education materials on any medium.
  • “Marks” means registered or unregistered trademarks, service marks, trade names, logos, service names, or other proprietary markings.
  • “Partner” means an entity with which Capture2 has an independent contractor business relationship such as a reseller or supplier of software and/or services. The parties acknowledge and agree that in this context, the term “partner” shall not imply any legal or statutory partnership.
  • “Services” mean the Capture2 application or applications provided as a service by Capture2 that are ordered and purchased by Customer identified in the Order Form, including associated offline components but excluding any third party applications.
  • “Subscription” means the right of a Customer and its Authorized Users to access the Services during the Subscription Period.
  • “Subscription Period” means the period during which Customer may use the Services, as specified in the Order Form. Unless otherwise specified in the applicable Order Form, the Subscription Period begins on the Effective Date of the Order Form.
  • “Third Party Terms” means terms issued by a third party that govern Customer’s use of the Services. Capture2 may notify Customer of Third Party Terms by referencing them in this Agreement or future Order Forms, or by providing other written notice from time to time. All Third Party Terms are incorporated into this Agreement by this reference.
  • “Updates” means upgrades, modifications, improvements, enhancements, extensions, new releases, and other changes to the Services that Capture2 makes available.

LEGEND

Capture2, Inc.
2820 Camino del Rio S. #200
San Diego, CA 92108

Last Updated: May 23, 2018