This Customer Agreement, including our privacy policy (available at https://usecapsule.com/privacy-policy) (“Privacy Policy”), which is incorporated herein by reference (together, this “Agreement”), is a legally binding contract between you and Capsule Labs Inc. (“Capsule,” “us,” “we,” or “our”) regarding your use of the Product (as defined below). You and Capsule are sometimes referred to herein, individually, as a “Party” and, collectively, as the “Parties.” References to “Customer,” “you”, and “your” refer to the individual accepting this Agreement, entering into an Order Form, or otherwise using the Product. If the Product is being used on behalf of a company, organization, or other entity by an individual authorized to accept this Agreement on its behalf, then all references to “Customer,” “you,” or “your” refer to such entity and its Affiliates (as defined below). If you are a company, organization, or other entity, the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind you to this Agreement.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING OR OTHERWISE ENTERING INTO AN ORDER FORM THAT REFERENCES THIS AGREEMENT, USING (OR MAKING ANY PAYMENT FOR) THE PRODUCT, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT (THE DATE UPON WHICH YOU ACCEPT THIS AGREEMENT IS REFERRED TO AS THE “EFFECTIVE DATE”), YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE PRODUCT, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING OUR PRIVACY POLICY. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE PRODUCT. YOUR USE OF THE PRODUCT, AND OUR PROVISION OF THE PRODUCT TO YOU, CONSTITUTES AN AGREEMENT BY US AND BY YOU TO BE BOUND BY THESE TERMS.
[YOU AGREE TO RECEIVE TEXTS/CALLS FROM OR ON BEHALF OF US AT THE PHONE NUMBER YOU PROVIDE TO US. THESE TEXTS/CALLS MAY INCLUDE OPERATIONAL AND MARKETING MESSAGES ABOUT YOUR USE OF THE PRODUCT. YOU UNDERSTAND AND AGREE THAT THESE TEXTS/CALLS MAY BE CONSIDERED TELEMARKETING UNDER LAW, THEY MAY BE SENT USING AN AUTOMATIC TELEPHONE DIALING SYSTEM OR OTHER AUTOMATED TECHNOLOGY, AND YOUR CONSENT IS NOT A CONDITION OF ANY PURCHASE.
1.1 “Account” means an account enabling an End User to access and use certain of the Product’s features and functionalities for Wallets through the Application using such End User’s login credentials.
1.2 “Affiliates” means an entity which: (a) is owned or Controlled by, (b) owns or Controls, or (c) is under common Control with a Party; where “Control” means having more than fifty percent (50%) of the controlled entity’s shares or ownership interests representing the right to make decisions for such controlled entity.
1.3 “Application” means a hosted application, mobile application, or other downloadable application operated and maintained by Customer that interoperates and interconnects with the Product for purposes of making certain of the Product’s features and functionalities for Wallets available to End Users.
1.4 “Authorized User(s)” means certain employees, contractors, or other personnel of Customer that are authorized by Customer to access and use the Product on behalf of Customer.
1.5 “Capsule Technology” means any or all of the following and any tangible embodiments thereof that are used, provided, or otherwise made available by Capsule with respect to the Product: (a) software (whether in source code or in binary form) and other works of authorship; (b) inventions (whether or not patentable), discoveries, improvements; (c) proprietary and confidential information, trade secrets and know how; (d) databases, data compilations and collections and technical data; (e) methods and processes; and (f) devices, prototypes, designs, and schematics. For the avoidance of doubt, “Capsule Technology” does not include the Product.
1.6 “Confidential Information” means any information, whether in tangible or intangible form, disclosed by or on behalf of one Party (“Disclosing Party”) to the other Party (“Receiving Party”) that (a) is identified as “confidential,” “proprietary,” “private,” “restricted,” “sensitive,” “secret” or “internal use only” at the time of disclosure, or (b) should reasonably be considered to be confidential or proprietary due to its nature or the context of its disclosure. Confidential Information may include, without limitation, specifications, software, costs, prices, names, finances, marketing plans, business opportunities, orders, personnel, customer information, research, development, know-how, technology, designs, devices, data, procedures, processes, practices, protocols, methods, or techniques. Confidential Information shall not include information which: (a) was rightfully in the possession of, or was known by, the Receiving Party prior to its receipt from the Disclosing Party, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the Receiving Party from a third party, without an obligation to keep such information confidential; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
1.7 “Customer Branding” means the trademarks, service marks, logos, company name, domain names, and other branding elements of Customer, including any audio, video, text, or photographs owned, licensed, or otherwise authorized to be used by Customer.
1.8 “Customer Data” means the data, content, or other information that is provided, transmitted, or otherwise made available by or on behalf of Customer or its Users to Capsule in the provision of the Product, Professional Services, or Support Services.
1.9 “Deliverables” means the specific deliverables and work product to be provided by Capsule to Customer in connection with Capsule’s provision of Professional Services that are specifically identified as such in the applicable SOW.
1.10 “API” means the application programming interface made available by Capsule under this Agreement to be integrated, contained, or otherwise embedded within the Application which facilitates the transmission of certain End User Data to Capsule for purposes of making certain of the Product’s features and functionalities for Wallets available to End Users.
1.11 “Digital Assets” means any digital representation of value based on (or built on top of) a cryptographic protocol of a computer network, including virtual currency, cryptocurrency, non-fungible tokens, digital commodities, and any other digital assets.
1.12 “Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Capsule relating to the Product.
1.13 “End User(s)” means a person or entity that is authorized to access and use the Application.
1.14 “End User Data” means Customer Data relating to an End User that is provided, transmitted, or otherwise made available to Capsule through the API.
1.15 “Order Form(s)” means an order form, quote or other similar document executed by the Parties that references this Agreement and specifies, among other things, the Product, Professional Services, and/or Support Services purchased thereunder, the Subscription Term, and the fees to be paid in connection therewith.
1.16 “Product” means the software development kit made available by Capsule under this Agreement which is (a) comprised of the Redistributable Code, Sample Code, and API and (b) makes available certain features and functionalities for Wallets available to End Users through the Application (as described in the Documentation).
1.17 “Professional Services” means certain purchased professional services to be provided by Capsule to Customer with respect to the Product as further specified in a SOW executed by the Parties.
1.18 “Redistributable Code” means the component of the Product provided by Capsule in object code format under this Agreement that will be integrated, contained, or otherwise embedded within the Application in object code format.
1.19 “Sample Code” means the component of the Product provided by Capsule in source code format under this Agreement that will be integrated, contained, or otherwise embedded within the Application in object code format.
1.20 “Sensitive Data” means any Customer Data that constitutes: (a) “personal data,” personal information,” “personally identifiable information,” “nonpublic personal information,” or any similar concept under any applicable law (excluding any such information or data that are Account credentials (“Account Data”)); (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act; (c) credit, debit, or other payment card data or financial account information, including bank account numbers; or (d) social security numbers, driver’s license numbers, or other government identification numbers.
1.21 “SOW” means a written document specifying the Professional Services to be performed and the Deliverables to be provided by Capsule to Customer.
1.22 “Subscription Term” means the term of Customer’s access to and use of the Product (as specified in the Order Form).
1.23 “Transaction(s)” means any financial transaction facilitated by or through the Application involving the purchase, sale, trade, transmission, disposition, transfer, or exchange of fiat currency or Digital Assets by an End User.
1.24 “Usage Data” means any performance, analytical, or usage data or information relating to Customer’s (including its Users’) access to or use of the Product that is generated or otherwise collected by the Product, but excluding Customer Data.
1.25 “Users” means Authorized Users and End Users.
1.26 “Digital Wallet” means a digital wallet supported by the Product that is used to store, custody, manage, transfer, and otherwise dispose of Digital Assets and/or fiat currency.
2.1 License. Subject to the terms and conditions of this Agreement and the applicable Order Form, Capsule hereby grants Customer, during the Subscription Term, a non-exclusive, non-sublicensable, non-transferable (except in accordance with Section 13.6), worldwide license, exercisable only by and through its Authorized Users, to download, install, and use a reasonable number of copies of the Product in strict accordance with its Documentation solely for its internal business purposes to develop and test an Application that interoperates and interconnects with the Product. The foregoing license only permits Customer to: (a) integrate, distribute, and embed the API as an integrated component of the Application; (b) reproduce and internally modify Sample Code solely as an integrated component of the Application; (c) reproduce and distribute the Sample Code and Redistributable Code only in object code format solely as integrated components of the Application (except for those components of the Sample Code that are required to be distributed in source code format as specified in the Documentation); and (d) grant each End User to whom Customer has distributed the API and the object code form of such Sample Code or Redistributable Code as integrated components of the Application with a non-sublicensable, non-transferable right to download, install, and use each of the foregoing solely for such End User’s personal, non-commercial use in connection with the Application (in each case of (a) through (d) above, in a manner that is at all times consistent with the terms and conditions of this Section).
2.2 Accounts. In order to access and use certain of the Product’s features and functionalities through the Application, End Users must register an Account. When registering for an Account, End Users will be required to provide Capsule with certain registration information (including, an email address and other contact information). Each Account is personal to that End User and may not be transferred, sold, or otherwise assigned to or shared with any other third party. Each End User must keep its login credentials for its Account confidential and not share them with anyone else. Customer will immediately notify Capsule at support@usecapsule.com if it becomes aware of, or has a reasonable basis to believe that any of its End Users’ login credentials or their Accounts have been compromised or are no longer secure.
2.3 White Label. To the extent specified in the applicable Order Form, Customer may modify the front-end user interface of certain of the Product’s features and functionalities that are displayed through the Application such that it only includes Customer Branding when accessed or used by End Users through the Application. Notwithstanding the foregoing, the white labelled front-end user interface will contain the following, or a reasonably similar, attribution statement (the content and location of which will be determined by Capsule in its reasonable, good faith discretion): “Powered by Capsule”.
2.4 Restrictions. Except as otherwise permitted by applicable law, the licenses and rights granted to Customer in this Agreement do not include any right to, and Customer will not, and will not permit any third parties (including any Users) to: (a) modify the Documentation; (b) implement the API in any software other than in connection with the Application or to support any interfaces between computing devices or computing functions other than as expressly required to facilitate the interoperation and interconnection of the Product with the Application; (c) modify, translate, or create a derivative work of any portion of the Product (except for the limited right to modify the Sample Code as expressly set forth in Section 2.1); (d) sell, lease, loan, provide, distribute or otherwise transfer any portion of the Product to any third party (except for the limited right to distribute the API, Sample Code, and Redistributable Code as expressly set forth in Section 2.1); (e) reverse engineer, disassemble, decompile, or otherwise attempt to gain access to the source code of the Product (except for the Sample Code); (f) display, expose or disclose any portion of the Product to any third party (except for the limited right to distribute the API, Sample Code, and Redistributable Code as expressly set forth in Section 2.1); (g) remove, alter, or cover any copyright notices or other proprietary rights notices placed, displayed, contained, or embedded on or in any part of the Product (except as expressly permitted under Section 2.3); (h) use the Product to create or develop any command set, application or other application programming interface or software (including without limitation the Application) that (1) can be used with any service or product other than the Product, (2) is competitive with, directly or indirectly, with any of Capsule’s products and/or services, or (3) otherwise detrimental to Capsule’s business; (i) release or otherwise commercially distribute to third parties (including End Users) any Application that is not fully compatible with the Product and the Capsule Technology; (j) circumvent, disable, or otherwise interfere with the operation, security, or other technical features or measures of the Product or of the Capsule Technology (including any access or usage restrictions); (k) perform or conduct any benchmarking or similar activities (including publishing benchmarks or performance information about the Product); (l) conduct any security or vulnerability testing of the Product or of the Capsule Technology; or (m) transmit or upload any viruses, Trojan Horses, backdoors, malware, or any other forms of harmful or malicious materials to or through the Product or the Capsule Technology.
2.5 Affiliate Purchases. Customer may allow any of its Affiliates to enter into its own Order Forms with Capsule under this Agreement; provided that Capsule may refuse to enter into any such Order Form with any such Affiliate in its sole discretion. Such Affiliate will be deemed to be the “Customer” only for purposes of such Order Form, but Customer will at all times be solely liable for such Affiliate’s and its Authorized Users’ access to and use of the Product and their compliance with the terms and conditions set forth herein (including any Fees due under any such Order Form).
2.6 Professional Services. From time to time, the Parties may enter into a mutually agreeable SOW pursuant to which Capsule will provide Customer with the Professional Services and the Deliverables specifically identified therein. The Parties’ respective rights and obligations with respect to Professional Services are governed by, and subject to, the additional terms and conditions set forth in the SOW.
2.7 Feedback. If Customer or any of its Authorized Users provides Capsule with feedback, input, or suggestions relating to the Product, the Capsule Technology, or any other Capsule products or services (collectively, “Feedback”), Customer hereby grants Capsule an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Product and Capsule Technology and to create other products and services. Capsule will have no obligation to provide Customer or its Authorized Users with attribution for any Feedback provided to Capsule.
2.8 Open Source. The Product may be distributed with certain third-party open source software (“OSS”), as listed in the Documentation or as specified by Capsule upon prior written request by Customer. Any use of OSS on a stand-alone basis will be subject to the terms of the applicable OSS license and not this Agreement.
2.9 Reservation of Rights. All rights not expressly granted to Customer in this Agreement are reserved by Capsule. No additional rights whatsoever (including, without limitation, any implied licenses) are granted to Customer by implication, estoppel or otherwise. Except for Customer’s right to access and use the Product as expressly set forth in this Agreement, Capsule and/or its licensors retain all intellectual property and other proprietary rights in the Product, Professional Services, Deliverables, and Capsule Technology (including any modifications, enhancements, or improvements to any of the foregoing).
2.10 Trial and Betas. If Customer or any of its Authorized Users receives access to the Product, or any features or functionality relating thereto, on a free or trial basis or as an alpha, beta or early access offering (“Trials and Betas”), any access to or use of the Trials and Betas by Customer or its Authorized Users is permitted only for Customer’s internal evaluation and testing purposes during the period designated by Capsule or otherwise set forth in an Order Form (not to exceed thirty (30) days unless otherwise agreed upon by the Parties in writing). These Trials and Betas will be considered part of the Product and all provisions of this Agreement relating to the Product will apply to Trials and Betas as well. Trials and Betas are optional and either Party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Capsule may never release, and their features and performance information are deemed to be Capsule’s Confidential Information. Capsule may suspend Customer’s and its Authorized Users’ access to the Trials and Betas at any time. Customer’s and its User’ use of Trials and Betas is at their own risk. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CAPSULE PROVIDES NO WARRANTY, INDEMNITY, OR SUPPORT FOR TRIALS AND BETAS AND ITS LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED $50.00 (USD).
2.11 Suspension. Capsule may immediately suspend access to the Product and related services if: (1) Capsule reasonably believes, in its reasonable, good faith discretion, that Customer or any User has accessed or used the Product in an unauthorized manner or that Customer’s use of the Product exceeds any usage limits or restrictions imposed on it by Capsule; (2) Customer’s account is thirty (30) days or more overdue; or (3) Capsule reasonably believes, in its reasonable, good faith discretion, that Customer’s or its Users’ acts or omissions may pose a risk of harm to others or to the security, operation, availability, stability, or integrity of the Product or the Capsule Technology. Where practicable and at its reasonable, good faith discretion, Capsule will use reasonable efforts to provide Customer with prior notice of the suspension. Capsule will use reasonable efforts to restore Customer’s and its Authorized Users’ access to the Product in accordance with this Agreement once the basis of such suspension is resolved to Capsule’s reasonable, good faith satisfaction.
2.12 Product Disablement. The Product contains a feature that is used to automatically disable the Product to ensure that Customer and its Authorized Users do not use the Product longer than the term of, or beyond the scope of, Customer’s license to use the Product during the Subscription Term. Customer acknowledges that upon the expiration or earlier termination of its license to the Product, the Product may cease to function in some or all respects. Customer acknowledges that the disabling of the Product is a key feature of the license rights and responsibilities conveyed under this Agreement
3.1 Regulated Services. Customer hereby acknowledges and agrees that: (a) Capsule is not a licensed or registered money transmitter, money service business, or custodian under applicable law, nor does Capsule provide any services requiring a money transmitter license, registration as a money service business, or a license to perform custodial services under applicable law (collectively, “Regulated Services”); (b) any Regulated Services are to be performed by Customer; and (c) nothing contained herein will be interpreted or otherwise construed as Capsule being deemed to be the provider of Regulated Services.
3.2 Authorizations. Customer shall be solely responsible for obtaining and maintaining where applicable, all governmental, regulatory, or other legally required licenses, registrations, permits and authorizations to: (a) conduct its business in every jurisdiction where it is required to do so; (b) operate, maintain, sell, offer to sell, market, or perform services relating to the Application in each jurisdiction with legal authority, regulatory oversight, or supervision over the Application or Customer; and (c) perform its obligations under this Agreement and in connection with any Transaction, including with respect to Regulated Services (collectively, “Authorizations”).
4.1 Application. Customer will ensure: (a) the Application does not directly or indirectly adversely affect, impede, or otherwise hinder or disrupt the functionality, stability, security, operation, or performance of the Product, the Capsule Technology, or any other applications using the Product; (b) the Application correctly identifies itself to the Product when requesting authorization; (c) the Application does not attempt to modify the Product in any way; (d) the Application (including its use, access, operation, maintenance, sale, offering for sale, and marketing thereof) complies with all applicable laws in each jurisdiction with legal authority, regulatory oversight, or supervision over the Application or Customer; and (e) that it will not subject any portion of the Product or any intellectual property right of Capsule in or to any portion of the Product to the terms of any “open source” license, including a license that requires, as a condition of use, modification, or distribution of technology subject to such license, that such technology or other technology combined or distributed with such technology (1) be disclosed or distributed in source code form, (2) be licensed for the purpose of making derivative works, or (3) be re-distributable at no charge. Customer hereby agrees and acknowledges that Capsule will not be liable for the Application or any use thereof except as expressly set forth herein (including (a) its security, functionality, operation, availability, or interoperability, and (b) the settlement, execution, processing, transmission, distribution, disposition, or transfer of fiat currency or Digital Assets in connection with any Transaction facilitated by or through the Application).
4.2 Sensitive Data; Privacy Policy. Customer will not, and will require that its Users do not, transmit, upload, or otherwise make available any Sensitive Data to Capsule (excluding Account Data). To the extent permitted under applicable law, Capsule reserves the right, in its sole discretion, to immediately delete any such Sensitive Data transmitted, uploaded, or otherwise made available to Capsule with or without notice to Customer. Please read the Privacy Policy carefully for information relating to our collection, use, storage, and disclosure of Account Data.
4.3 Customer Technology. Customer will be solely responsible for obtaining and maintaining any equipment, software, Internet connectivity, networking infrastructure, ancillary services, and other tangible embodiments of technology not provided by Capsule that are needed to facilitate the operation and maintenance of the Application and the interoperation and interconnection of the Product with the Application, including as set forth in the Documentation. Customer will be solely liable for implementing, securing, and maintaining such technology, and Capsule will not be liable to Customer for any failure or non-fulfillment of Customer to do so.
4.4 Access Controls. Certain features and functionalities of the Product permit Customer to enable, modify, rescind, or otherwise implement certain permissions, restrictions, and other controls with respect to Transactions, the Application, End Users, and Wallets (“Access Controls”). Customer is solely responsible and liable for its acts or omissions (including those of its Authorized Users) relating to its use and access to the Access Controls (including the permissions, restrictions, and other controls relating thereto).
4.5 Unauthorized Use. Customer acknowledges and agrees that the Product and any other materials furnished to Customer by or on behalf of Capsule involve valuable proprietary rights of Capsule. Customer will, and will require that its Users, take all necessary and appropriate steps and precautions to protect the Product from any use, reproduction, distribution, disclosure, possession, examination, or other activity involving any part of the Product or Documentation that is not expressly authorized under this Agreement (collectively, “Unauthorized Use”). Without limiting the generality of the foregoing, Customer will, and will require that its Users, use their best efforts to prevent any Unauthorized Use and will immediately notify Capsule in writing of any Unauthorized Use that comes to Customer’s attention. In the event of any Unauthorized Use by anyone who obtained access to the Product directly or indirectly through Customer or any of its customers, employees, agents, representatives, or contractors (including Users), Customer will take, and will require that its Users take, all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of the Product in the possession or control of the person or entity engaging in such Unauthorized Use. Customer will, and will require that its Users, provide Capsule with such cooperation and assistance related to any such Unauthorized Use as Capsule may reasonably request.
4.6 Communications. Customer shall be responsible and liable for any and all communications sent by or on behalf of Customer sent to Capsule or to Users. Customer agrees that it will not, and will require that its Authorized Users do not, submit, upload, publish, broadcast, or otherwise transmit any message, content, or material on or through the Product that: (a) is libellous, harmful to minors, obscene, violent, offensive, abusive, insulting, threatening, discriminatory, or constitutes pornography; (b) infringes the intellectual property or proprietary rights of any third party or is otherwise unlawful; (c) constitutes or encourages conduct that could constitute a criminal or indictable offense; or (d) promotes or encourages racism, sexism, discrimination, hatred, or bigotry.
5.1 Support Services. Subject to Customer’s compliance with the terms and conditions of this Agreement and the applicable Order Form, Capsule will, during the Subscription Term, use commercially reasonable efforts to respond to and resolve issues relating to the Product that are reported to Capsule by Customer at support@usecapsule.com (“Support Services”) (except that Customer hereby acknowledges and agrees that Capsule is under no obligation to respond to or resolve all issues reported to Capsule or to provide any updates, upgrades, or other technical or maintenance support to Customer or any of its Authorized Users with respect to the Product).
5.2 Key Recovery. Notwithstanding the foregoing, End Users may contact Capsule for purposes of requesting a copy of such End User’s private keyshares associated with such End User’s Wallet(s) that are in the control or possession of Capsule (such private keyshares, “Private Keyshares,” and such request, “Keyshare Request”) and Capsule will, upon verifying the identity of the applicable End User and the authenticity, validity, and purpose of any such Keyshare Request, provide such End User with its requested Private Keyshares through the Application (“Key Recovery”). Once Private Keyshares are provided, disclosed, or otherwise made available to an End User, Capsule will not be liable to Customer or any of its End Users for any unauthorized use, access to, or disclosure of such Private Keyshares and, as between the Parties, Customer will be solely liable and responsible for the security, confidentiality, and protection of such Private Keyshares from any unauthorized access, use, or disclosure.
5.3 No Obligation to End Users. Customer will be solely responsible and liable for performing any and all services and other obligations to End Users (including (a) settling, executing, or otherwise processing, transmitting, distributing, disposing, or transferring fiat currency or Digital Assets in connection with any Transaction, (b) support and maintenance services to End Users, and (c) Regulated Services). Except as otherwise expressly set forth herein, in no event will Capsule have any obligation to any End User, and any and all obligations of Capsule under this Agreement are only to Customer.
6.1 Data Security. Capsule implements and maintains commercially reasonable physical, technical, organizational, and administrative security measures and procedures that are designed to protect Customer Data against unauthorized access, use, modification, deletion, or disclosure (“Security Program”).
6.2 License and Right to Customer Data. Customer hereby grants Capsule a non-exclusive, royalty-free, fully paid-up, non-transferable (except in accordance with Section 13.6), non-sublicensable, worldwide license, during the Subscription Term, to use, copy, store, transmit, publicly display, modify, create derivative works of, and otherwise process Customer Data: (a) to facilitate the interoperation and interconnection of the Product with the Application; (b) to make certain of the Product’s features and functionalities available to End Users through the Application; (c) provide the Product, Professional Services and Support Services; (d) to collect, generate, derive, and otherwise process Usage Data; and (e) as otherwise set forth under this Agreement.
6.3 Usage Data. As between the Parties, Capsule owns all right, title, and interest, including all intellectual property and other proprietary rights in and to, the Usage Data, the know-how and analytical results generated in the processing and use of Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to the Product or Capsule Technology made based on the Usage Data. Capsule may collect, generate, derive, and otherwise process Usage Data for Capsule’s business purposes, including to: (a) use it to monitor, operate, improve, and support the Product and the Capsule Technology and their performance, security, and stability; (b) create analytics, benchmarking, and performance data and reports; (c) track usage for billing purposes; and (d) develop new products and services. Customer will not interfere with the collection of Usage Data. Capsule will not disclose Usage Data externally, including in benchmarks or reports, unless such Usage Data has been de-identified or aggregated with usage data from other Capsule customers.
7.1 Obligations. The Receiving Party agrees that it shall take, and shall cause each of its directors, officers, employees, contractors, agents and consultants (including those of its Affiliate(s)) (collectively, “Representatives”) to take, all reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Disclosing Party’s Confidential Information. Without limiting the foregoing, the Receiving Party shall protect the Disclosing Party’s Confidential Information using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own Confidential Information. The Receiving Party shall use the Disclosing Party’s Confidential Information solely to perform its rights and obligations under this Agreement or to exercise rights granted under this Agreement and for no other purpose, and the Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any third parties, except to Representatives (provided that: (a) any such Representative (1) has a need to know the Disclosing Party’s Confidential Information in order to perform obligations on behalf of the Receiving Party or to exercise rights granted under this Agreement on behalf of the Receiving Party, (2) is made aware of the obligations under this Agreement, and (3) is bound by written agreements or professional obligations containing restrictions prohibiting the unauthorized disclosure or use of Confidential Information that are at least as protective as the terms of this Agreement; and (b) the Receiving Party remains liable for the acts and omissions of such Representatives with respect to the Confidential Information of the Disclosing Party). If the Receiving Party is subject to judicial or governmental proceedings requiring disclosure of the Confidential Information of the Disclosing Party, then, prior to any such disclosure, the Receiving Party will provide the Disclosing Party with reasonable prior written notice (to the extent legally permitted) and will obtain, or provide the Disclosing Party with an opportunity to obtain, a protective order or confidential treatment of the Confidential Information of the Disclosing Party. Each Party’s obligations of confidentiality hereunder shall survive the termination of this Agreement for a period of five (5) years following such termination (except that, as to any information that is identified as a trade secret under applicable law, each Party’s obligations shall survive for so long as such information remains a trade secret).
7.2 Return. Upon the termination of this Agreement, or upon a Disclosing Party’s written request: (a) all rights to the Disclosing Party’s Confidential Information shall terminate; (b) the Receiving Party shall, at the Disclosing Party’s option, return or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control within fifteen (15) days of the effective date of termination of this Agreement or the date of receipt of the Disclosing Party’s request; and (c) the Receiving Party will confirm in writing that it has complied with the obligations set forth in this Section 7.2.
7.3 Equitable Relief. Each Party acknowledges and agrees that a breach of this Section 7 may result in irreparable harm to the other Party for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, each Party shall be entitled to seek equitable relief, including an injunction, from any court of competent jurisdiction in the event of any breach or threatened breach of this Section 7 in order to enforce its rights hereunder without the necessity of proving actual damages or posting any bond.
8.1 Fees. Customer will pay Capsule the fees set forth in the applicable Order Form (“Fees”). Unless otherwise specified in the Order Form, Customer will pay all amounts due within thirty (30) days of the date of the applicable invoice. Except as expressly set forth herein, any and all Fees, costs, and expenses payable under this Agreement or any Order Form are non-cancellable and non-refundable. All amounts payable under this Agreement are to be paid by Customer in United States dollars.
8.2 Payment Terms. Any amount not paid when due will be subject to finance charges equal to one and a half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse Capsule for any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Capsule to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. Other than net income taxes imposed on Capsule, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by Capsule after all such Taxes are paid are equal to the amounts that Capsule would have been entitled to in accordance with the applicable Order Form as if the Taxes did not exist.
9.1 Term. This Agreement will commence upon the Effective Date and will continue in full force and effect until it is terminated in accordance with the terms of this Agreement. The Parties may, at any time, mutually agree, in writing, to terminate this Agreement.
9.2 Subscription Term. Each Order Form will automatically renew for additional successive terms equal in length to the Subscription Term specified in the Order Form unless, at least thirty (30) days before the end of the then-current Subscription Term, either Party provides written notice to the other Party of its intent to not renew the Order Form. Any termination or expiration of an Order Form pursuant to this Section 9.2 will not terminate this Agreement or any other Order Forms then in effect, unless otherwise agreed to by the Parties in writing, and the Agreement will continue in full force and effect after any such termination or expiration of an Order Form.
9.3 Termination for Cause. Either Party may terminate this Agreement, effective on written notice to the other party, if the other Party materially breaches this Agreement, and such breach (a) is incapable of cure, or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
9.4 Other Termination Rights. Capsule may terminate this Agreement and/or any Order Form: (a) for convenience upon sixty (60) days’ prior written notice to Customer, or (b) immediately upon written notice to Customer in the event of (1) Customer’s failure to obtain or maintain any Authorizations required for the conduct of its business or to operate, maintain, sell, offer to sell, market, or perform services relating to the Application in any jurisdiction with legal authority, regulatory oversight, or supervision over the Application or Customer, or (2) any material change in or the adoption of any applicable law, regulation, judgment or decree that, in Capsule’s reasonable, good faith discretion, makes the conduct of Customer’s business or the subject matter of this Agreement illegal, unlawful, or otherwise prohibited in any jurisdiction with legal authority, regulatory oversight, or supervision over the Application or Customer. In the event that Customer determines, in its sole discretion, to discontinue the use and distribution of the Application, Customer will notify Capsule in writing of such discontinuation at least thirty (30) days prior to the effective date of any such discontinuation and Customer may terminate this Agreement for convenience by providing Capsule with written certification that such discontinuation has been effectuated.
9.5 Refunds. In the event of a termination of this Agreement by Capsule pursuant to Section 9.4(a) or by Customer pursuant to Section 9.3, Capsule will provide Customer with a refund for any prepaid Fees under any Order Form then in effect, which will be pro-rated for the terminated portion of the remaining months of the Subscription Term. Customer will not be entitled to any refund of any Fees if this Agreement is terminated by Capsule pursuant to Section 9.3 or Section 9.4(b) or by Customer pursuant to Section 9.4.
9.6 Effect of Termination. Upon any termination of this Agreement: (a) Customer will immediately cease all use of the Product; (b) the licenses granted to Customer herein will immediately terminate; (c) all Order Forms then in effect will automatically terminate (unless otherwise agreed to by the Parties in writing); and (d) Customer will pay to Capsule any Fees or other amounts that have accrued prior to the effective date of any such termination. Notwithstanding the foregoing, any sublicenses granted to End Users pursuant to Section 2.1 will survive termination of this Agreement (except that Customer (a) will promptly modify the Application such that the Product is not required in order for End Users to access or otherwise use the Application, and (b) acknowledges and agrees that, upon termination of this Agreement, certain features and functionalities of the Application which require the Product may be impacted, interrupted, or otherwise not operate or function properly). All rights to payment, causes of action, and any provision that, by their terms, are intended to survive termination, shall survive termination of this Agreement.
10.1 Mutual. Each Party represents and warrants to the other Party that: (a) it is a corporation, limited liability company, or other business entity duly organized, validly existing, and in good standing in the jurisdiction of its incorporation, organization, or formation; (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required; (c) it has provided, and will provide, all notices to, and has obtained, and will obtain and maintain, all necessary and sufficient rights, consents, approvals, waivers, authorizations, and permissions for it to have the full right, power and authority to enter into this Agreement and to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement; (d) the execution of this Agreement by its representative whose signature is set forth below has been duly authorized by all necessary action of the Party; (e) when executed and delivered by each Party, this Agreement will constitute the legal, valid, and binding obligation of each Party, enforceable against such Party in accordance with the terms and conditions set forth herein; and (f) it will comply with all applicable laws in connection with the performance of its obligations, and the exercise of any rights, granted under this Agreement.
10.2 By Capsule. Capsule represents and warrants to Customer that the Product will perform in all material respects in accordance with the Documentation for the first six (6) months of the Subscription Term. For any material breach of the foregoing representation and warranty, Customer’s sole and exclusive remedy, and Capsule’s sole and exclusive obligation, will be, at Capsule’s sole discretion, for Capsule to correct, modify, or otherwise repair the deficient Product or, if such remedial measures are not commercially feasible or otherwise fail to bring the Product into material conformity with the foregoing representation and warranty, Customer may terminate the applicable Order Form and Capsule will provide Customer a refund of any prepaid Fees paid for such deficient Product which will be pro-rated for the terminated portion of the remaining months of the Subscription Term.
10.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN: (a) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, DUTIES, AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (b) THE PRODUCT, CAPSULE TECHNOLOGY, AND ALL INTELLECTUAL PROPERTY MADE AVAILABLE OR LICENSED BY CAPSULE UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” CAPSULE DOES NOT WARRANT THAT THE PRODUCT, THE CAPSULE TECHNOLOGY, OR ANY PORTION THEREOF, OR ANY MATERIALS OR CONTENT OFFERED OR MADE AVAILABLE THROUGH THEM, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND CAPSULE DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY OR ON BEHALF OF CUSTOMER THROUGH THE PRODUCT OR FROM CAPSULE OR ANY MATERIALS OR CONTENT MADE AVAILABLE ON OR THROUGH THE PRODUCT WILL CREATE ANY WARRANTY REGARDING CAPSULE, THE CAPSULE PRODUCT, OR THE CAPSULE TECHNOLOGY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 10.3 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Capsule does not disclaim any warranty or other right that Capsule is prohibited from disclaiming under applicable law.
11.1 Consequential Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THE THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
11.2 Direct Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT OF FEES PAID AND PAYABLE TO CAPSULE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR CIRCUMSTANCE FIRST GIVING RISE TO THE LIABILITY.
11.3 Exclusions. The foregoing limitations of liability set forth in this Section 11 will not apply to liabilities arising from: (a) a Party’s gross negligence, willful misconduct, or fraud; (b) Customer’s indemnification obligations under this Agreement; or (c) Customer’s express payment obligations under this Agreement (including all Order Forms).
11.4 Essential Purpose. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 WILL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12.1 By Capsule. Capsule will defend or at its option settle any and all claims, demands, or actions made by a third party (“Claims”) brought against Customer alleging that the Product infringes or misappropriates any U.S. patent or U.S. copyright right of a third party (“IP Claim”), and Capsule will pay any final judgments awarded in any such IP Claim defended by Capsule or settlements entered into by Capsule. Notwithstanding the foregoing, Capsule will have no obligation under this Section for IP Claims arising from: (a) access to or use of the Product in combination with other products or services (including the Application) if such infringement or misappropriation would not have arisen but for such combination; (b) Capsule’s compliance with any designs, requirements, or specifications required or otherwise provided by Customer (including with respect to Professional Services and the Deliverables), if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) unauthorized access to or use of the Product by Customer or its Users; (d) any modification of the Product not made or authorized in writing by Capsule where such infringement or misappropriation would not have occurred absent such modification; (e) any Customer Branding; (f) the Application; or (g) Customer’s gross negligence, willful misconduct, or fraud (subsections (a) through (g) are collectively referred to as “Excluded Claims”). In the event any IP Claim is brought, or reasonably likely to be brought (in Capsule’s reasonable, good faith discretion), against Customer, then Capsule may at its sole option and expense: (a) procure for Customer the right to continue using the infringing component of the Product; (b) replace the infringing component of the Product with a non-infringing equivalent; or (c) in the event that neither of the foregoing is reasonably practicable, terminate this Agreement and the rights granted herein. THIS SECTION 12.1 STATES THE ENTIRE LIABILITY AND OBLIGATION OF CAPSULE, AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION BY THE PRODUCT OF ANY INTELLECTUAL PROPERTY RIGHTS.
12.2 By Customer. Customer will indemnify, defend and hold harmless Capsule from and against any and all Claims and all resulting liabilities, settlements, costs, damages and fees (including reasonable attorneys’ fees and costs) incurred or suffered by Capsule arising from or in connection with: (a) any breach or non-fulfillment by Customer or its Authorized Users of any representation, warranty, or covenant set forth herein or that is otherwise provided by Customer to an End User or to any other third party (including, without limitation, by way of the end user license agreement governing an End User’s access to or use of the Application); (b) any violation of applicable law (including those that apply with respect to the Application); (c) Customer Data; (d) any Claim that the Application infringes or misappropriates the intellectual property or proprietary rights of a third party; or (e) the Excluded Claims.
12.3 Procedures. Any Claim subject to indemnification under this Section 12 will be subject to the following provisions: (a) the indemnifying Party will be given prompt written notice of the Claim by the indemnified Party, provided that any delay in providing notice will not relieve the indemnifying Party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying Party was prejudiced by the delay; (b) the indemnifying Party will have the right to control the defense and all negotiations relative to the settlement of any such Claim (except that the indemnified Party may participate in a Claim with its own counsel at its own expense), provided that no settlement admitting liability on the part of the indemnified Party may be made without the express written consent of the indemnified Party (not to be unreasonably withheld, conditioned, or delayed); and (c) the indemnified Party will reasonably cooperate with the indemnifying Party and its counsel at the indemnifying Party’s cost and expense.
MISCELLANEOUS
13.1 No Partnership, Joint Venture or Franchise. This Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise.
13.2 Export. The Product, Customer Data, and the Application may be subject to U.S. export jurisdiction and other applicable national or international laws, and Customer will comply with all applicable international and national laws that apply to any of the foregoing, including the U.S. Export Administration Regulations.
13.3 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Except as specified in Section 13.5, any action, dispute, or claim arising out of or in connection with this Agreement will be brought in the state or federal courts in San Francisco County, California, and each Party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.
13.4 Arbitration. Any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration in San Francisco, California, under the Rules of the American Arbitration Association (“Rules”) by three arbitrators appointed in accordance with the Rules. If there is a conflict between the Rules and this Agreement, this Agreement will prevail. All other disputes will be resolved by a court specified in Section 13.4. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. Nothing in this Section will be interpreted or otherwise construed as preventing a Party from applying at any time to a court of competent jurisdiction to seek and obtain injunctive and other equitable relief (including, without limitation, a temporary restraining order) and by doing so will not breach or waive the agreement to arbitrate disputes set forth in this Section. The Parties, their representatives, the arbitrators, and other participants shall keep confidential the existence, content, and result of the arbitration. Each Party will bear its own costs in the arbitration. The arbitrators will have full power and authority to determine issues of arbitrability and to interpret or construe the provisions of the agreement documents and to fashion appropriate remedies (including temporary, preliminary, interim, or permanent injunctive relief); provided that the arbitrators will not have any right or authority: (i) in excess of the authority that a court having jurisdiction over the Parties and the dispute would have absent this arbitration agreement; or (ii) to award damages in excess of the types and limitation of damages found in the Agreement.
13.5 Assignability. Customer may not assign its rights, duties, and obligations under this Agreement without Capsule’s prior written consent, which consent will not be unreasonably withheld or delayed, except Customer may assign this Agreement without Capsule’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the assignee agrees in writing to assume and fulfill all of Customer’s obligations under this Agreement and the successor does not indirectly or directly compete with Capsule. Any assignment in violation of this Section 13.6 is null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
13.6 Construction; Waiver. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any limitation or restriction on the grant of any license to Customer under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the Party’s right to take subsequent action. Exercise or enforcement by either Party of any right or remedy under this Agreement will not preclude the enforcement by the Party of any other right or remedy under this Agreement or that the Party is entitled by law to enforce.
13.7 Publicity. Neither Party may make any public announcement relating to this Agreement except with the other Party’s prior written consent or as required by applicable laws. Capsule may reference Customer’s name and include Customer’s trademarks, logos, and other branding elements (“Marketing Materials”) in Capsule’s customer lists, promotional materials, and in connection with its marketing, advertising, promotional, or sales practices or activities; provided that Customer may require that Capsule cease further use of Marketing Materials upon written notice to Capsule (except that Capsule will not be obligated to cease its use of any tangible materials containing, embodying, or including Marketing Materials that are in existence at the time of Capsule’s receipt of such notice from Customer).****
13.8 Force Majeure. In no event will Capsule be liable or responsible to Customer, or be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any obligation under this Agreement to the extent such failure or delay is caused by any circumstances beyond Capsule’s reasonable control, including: (a) acts of God; (b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) inability to obtain sufficient supplies, transportation, services, materials, technology, or other essential commodity or service required in the conduct of its business; and (i) any material change in or the adoption of any applicable law, regulation, judgment or decree that prevents, or alters Capsule’s ability to perform its obligation under this Agreement (each a "Force Majeure Event").
13.9 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth in the applicable Order Form and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing or one (1) business day following delivery to a courier.
13.10 Entire Agreement. This Agreement (including all Order Forms and any exhibits or addendums attached hereto) is the final and complete expression of the agreement between the Parties regarding the subject matter of this Agreement. This Agreement supersedes, and will govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. The terms and conditions in any Customer purchase order, ordering document, or business form will not amend or modify this Agreement and are expressly rejected by Capsule; any of these Customer documents are for administrative purposes only and have no legal effect.
13.11 Communications. Customer hereby agrees that Capsule and those acting on its behalf may send Customer and its Authorized Users text (SMS) messages at the phone numbers provided to Capsule. These messages may include operational and marketing messages about Customer’s or its Users’ use of the Product and related services. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF MARKETING TEXT MESSAGES FROM CAPSULE, YOU CAN EMAIL support@usecapsule.com OR REPLY TO ANY SMS MESSAGE FROM CAPSULE WITH “STOP” OR TEXT THE WORD “STOP” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. IF YOU WISH TO OPT OUT OF ALL TEXT MESSAGES FROM CAPSULE, YOU CAN EMAIL support@usecapsule.com OR TEXT THE WORD “STOPALL” TO THE NUMBER FROM WHICH YOU ARE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE PRODUCT. You may continue to receive text messages for a short period while we process your request, including messages confirming the receipt of your opt-out request. Your agreement to receive marketing texts is not a condition of any purchase on or use of the Product. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself. By using the Product, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
13.12 Modifications. Capsule may modify this Agreement from time to time with notice to Customer. Modifications take effect at Customer’s next Subscription Term or Order Form unless Capsule indicates an earlier effective date. If Capsule requires modifications with an earlier effective date and Customer objects, Customer’s exclusive remedy is to terminate this Agreement with notice to Capsule, in which case Capsule will provide Customer a refund of any pre-paid Product fees for the terminated portion of the current Subscription Term. To exercise this termination right, Customer must notify Capsule of its objections within fourteen (14) days after Capsule’s notice of the modified Agreement. Once the modified Agreement takes effect Customer’s continued use of the Product constitutes its acceptance of the modifications. Capsule may require Customer to click to accept the modified Agreement.
2.1 Professional Services. Capsule’s provision of the Professional Services during the SOW Term is contingent upon Customer’s performance of its payment and other obligations under the Agreement. Capsule reserves the right, in addition to other remedies available at law or in equity, to suspend its provision of the Professional Services for so long as Customer is not current with its obligations under the Agreement. All Professional Services and Deliverables provided by Capsule are only for Customer’s internal use and Customer may not use the Professional Services or Deliverables for the benefit of any third party. Capsule will use commercially reasonable efforts to perform Professional Services in accordance with the Agreement and in a professional and workmanlike manner.
2.2 Customer Materials. Customer will give Capsule timely access to all Customer Materials (as defined below) required for Capsule to perform the Professional Services and to deliver the Deliverables, and, if Customer fails or otherwise delays in doing so, Capsule’s obligation to provide Professional Services and to deliver the Deliverables will be excused until the Customer Materials are provided or otherwise made available to Capsule. For purposes of this SOW, “Customer Materials” means any materials, systems, and other resources that Customer provides to Capsule in connection with Professional Services and the Deliverables.
2.3 Customer Facilities. To the extent that Professional Services are to be provided at premises owned or otherwise controlled by Customer, Customer will supply Capsule personnel with facilities, equipment, and fully operational workstations. Customer will ensure that any necessary consents from landlords or other third parties are duly obtained if they are required to permit Capsule’s access to the facilities, premises, or locations where Professional Services are to be performed.
2.3 Expenses. Customer will reimburse Capsule for any reasonable travel, lodging, and other out-of-pocket expenses incurred by Capsule in connection with providing the Professional Services.
2.4 Confidentiality. All information, data, documents, Deliverables, and other materials provided or otherwise made available to Customer by Capsule in connection with the Professional Services are Confidential Information of Capsule and will be subject to the confidentiality obligations set forth in the Agreement.
2.5 Deliverables. Customer may use the Deliverables provided by Capsule under this SOW only for its internal business purposes as part of its authorized use of the Product subject to the same terms and conditions applicable to the Product under the Agreement. Capsule retains all right, title, and interest in and to the Deliverables and any improvements, enhancements, or modifications made thereto (in each case, including all related intellectual property and proprietary rights). Customer shall be entitled to keep and use all Deliverables provided by Capsule for the duration of the Subscription Term, but without any license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved by Capsule.
3.1 Co-Marketing Activities. The Parties agree to use commercially reasonable efforts to engage in the marketing and promotional activities described in Exhibit A (“Co-Marketing Activities”). To the extent specified in Exhibit A, each Party (“Licensor”) will provide the other Party (“Licensee”) with the trademarks, service marks, logos, company name, and other branding elements of Licensor (including any audio, video, text, or photographs owned, licensed, or otherwise authorized to be used by Licensor) (“Marketing Materials”) to be used by Licensee in connection with the performance of its obligations with respect to the Co-Marketing Activities. Licensor grants a limited, non-exclusive, non-transferable, non-sublicensable, and royalty-free license, during the SOW Term, to Licensee to use Licensor’s Marketing Materials specified in Exhibit A for purposes of the Licensee’s performance of its obligations with respect to the Co-Marketing Activities. Licensee will comply with any trademark usage, branding, or similar guidelines and Licensor’s written instructions that are provided, communicated, or otherwise made available by Licensor to Licensee from time to time. Other than the licenses granted herein with respect to each Licensor’s Marketing Materials, nothing herein will grant to Licensee any other right, title or interest in Licensor’s Marketing Materials. Licensor shall have the sole and exclusive right to enforce any rights in Licensor’s Marketing Materials. The license to Marketing Materials granted by Licensor to Licensee extends only to use of Licensor’s Marketing Materials in materials whose layout and content are pre-approved by Licensor in writing. Nothing in this Section 3 will be construed or interpreted as requiring either Party to: (a) introduce the other Party to any opportunity or to any customer or potential customer; or (b) include the other Party in any part of the sales process with any customer or potential customer.
3.2 Obligations. In performing obligations or exercising rights with respect to the Co-Marketing Activities, each Party will: (a) not engage in any deceptive, misleading, illegal, or unethical practices; (b) not make any representations, warranties, or guarantees concerning the other Party or its products and/or services; (c) comply with all laws applicable to such Party’s performance of such obligations or exercise of such rights; (d) not disparage and/or otherwise negatively comment on the other Party’s reputation, business operations, products, services, and/or relationship with such Party (except that neither Party will be prohibited from making truthful statements when requested to do so in the normal course of business or legal proceeding); and (e) not permit any third party to do any of the foregoing.
3.3 Participation. During the SOW Term, a Party may (in its reasonable, good faith discretion): (a) allow the other Party to participate in such Party’s marketing, advertising, promotional, and sales programs, events, and activities with respect to the Co-Marketing Activities; (b) provide, free of charge to the other Party, any reasonable information, material, and support to the other Party for purposes of facilitating the other Party’s performance of its obligations with respect to the Co-Marketing Activities; and (c) reasonably cooperate with the other Party in its performance of its obligations with respect to the Co-Marketing Activities.
4.1 Customer. In addition to Customer’s indemnification obligations set forth in the Agreement, Customer will indemnify, defend and hold harmless Capsule from and against any and all Claims and all resulting liabilities, settlements, costs, damages and fees (including reasonable attorneys’ fees and costs) incurred or suffered by Capsule arising from or in connection with: (a) death, bodily injury, damage, loss or destruction of any real or personal property caused by Customer or any third party acting on its behalf that are suffered by Capsule or any of its personnel; (b) Capsule’s authorized use of Customer’s Marketing Materials; (c) allegations that Customer’s Marketing Materials or the use thereof infringes, misappropriates, or dilutes the intellectual property rights of any third party; or (d) Customer’s material breach of Section 3.2 of this SOW.
4.2 Capsule. In addition to Capsule’s indemnification obligations set forth in the Agreement, Capsule will defend or at its option settle any and all Claims brought against Customer arising from or in connection with: (a) Customer’s authorized use of Capsule’s Marketing Materials, (b) allegations that Capsule’s Marketing Materials or the use thereof infringes, misappropriates, or dilutes the intellectual property rights of any third party; or (c) Capsule’s material breach of Section 3.2 of this SOW.
