Effective date: April 28, 2020
CAPTIVATEIQ, INC. (“CAPTIVATEIQ”) PROVIDES ITS SERVICES (AS DEFINED BELOW) TO YOU THROUGH THE CAPTIVATEIQ WEBSITE, SUBJECT TO THIS TERMS AND CONDITIONS (THESE “TERMS,” AND IF YOU ARE USING THE SERVICES ON BEHALF OF A PAYING CUSTOMER OF OUR SERVICES, THEN TOGETHER WITH THE ORDER AND THE CAPTIVATEIQ SERVICES AND SOFTWARE TERMS AND CONDITIONS, THIS “AGREEMENT”). BY ACCEPTING THESE TERMS OR BY ACCESSING OR USING THE SERVICES OR SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS AND OUR PRIVACY POLICY, WHICH IS INCORPORATED BY REFERENCE INTO THESE TERMS. IF YOU ARE USING THE SERVICES ON BEHALF OF A PAYING CUSTOMER OF OUR SERVICES, YOU ARE ALSO SUBJECT TO THE TERMS OF ANY SERVICE ORDER FORM AND THE CAPTIVATEIQ SERVICES AND SOFTWARE TERMS AND CONDITIONS ENTERED INTO BETWEEN CAPTIVATEIQ AND SUCH CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, BUSINESS OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, INCLUDING THE PRIVACY POLICY, IN WHICH CASE THE TERMS “YOU” OR “YOUR” WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SITE OR THE SERVICES.
YOU MAY NOT USE THE SITE AND THE SERVICES IF YOU ARE A COMPETITOR TO CAPTIVATEIQ.
YOU MAY NOT USE THE SITE AND THE SERVICES IF YOU ARE UNDER THE AGE OF 13.
1.1 “Order” means, if you are using the Services on behalf of a paying customer of CaptivateIQ, the Services Order Form, if any, signed by the parties thereto that describes the services to be provided by CaptivateIQ to the customer and the fees that will be paid by the Customer.
1.2 “Site” means the website at www.captivateiq.com.
1.3 “Your Account” means your CaptivateIQ Services account.
2.1 The “Software” includes (a) the Site accessible within a web-based environment via www.captivateiq.com, (b) the CaptivateIQ's incentive compensation services and related technologies indicated in the Order, if any, and (c) any software (including the Software, as defined below), data, reports, text, images, and content made available through any of the foregoing, and any new features added to or augmenting the Services, and all enhancements, modifications, and derivative works thereof.
2.2 The “Services” means services provided to you by CaptivateIQ through the Software. We may modify the Services or update the Software from time to time without notice to you.
3.1 Access. Subject to your compliance with all the terms and conditions of the Agreement, CaptivateIQ hereby grant to you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Site. CaptivateIQ may offer for sale licenses to the Services and certain CaptivateIQ products. Your use of the Services will be subject to the terms applicable to such Services under separate Order Form and Services and Software Terms and Conditions between You and CaptivateIQ.
3.2 Restrictions. (a) You will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services; (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party (except as part of the purpose contemplated in any Order Form and Services and Software Terms and Conditions between You and CaptivateIQ); (v) use the Services for competitive research or for scoping, benchmarking, developing or providing any similar or competitive product or services; (vi) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof, (vii) use the Services to create any other product or service; or (viii) use the Services in violation of any applicable laws or regulations (including any export laws, restrictions, national security controls and regulations). You will use the Services only in compliance with (1) Order Form and Services and Software Terms and Conditions between You and CaptivateIQ, if any, (2) the rights granted hereunder, and (3) in accordance with all applicable laws and regulations.
(b) You agree not to access the Services by any means other than through the interface that is provided by CaptivateIQ for use in accessing the Services. If you are using the Services on behalf of a paying customer of our Services, you will be provided with unique usernames and passwords to access the Services. Each username and password may only be used to access the Services during one concurrent login session. You will ensure that each username and password will be used only by you. You must provide true, accurate, and correct information at the time of registration and account creation, and thereafter. You will notify CaptivateIQ promptly of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Services.
(c) You will not (and will not allow any third party to) use the Services to email or otherwise upload any content that: (i) infringes or misappropriates any intellectual property or other proprietary or privacy rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) is unlawful, harmful, or otherwise objectionable; or (v) in the reasonable judgment of CaptivateIQ, which may expose CaptivateIQ or its users to any material harm or liability of any type.
3.3 Ownership. Except for the rights expressly granted under this Section 3, CaptivateIQ retains all right, title, and interest in and to the Site, the Services, the De-Identified Data, and all data (but excluding Your Content), software, products, works, and other intellectual property created, used, or provided by CaptivateIQ for the purposes of the Agreement. To the extent you provide CaptivateIQ with any feedback relating to the Site or the Services (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), CaptivateIQ shall own all right, title and interest in and to such Feedback, and you hereby makes all assignments necessary to achieve such ownership. Unless otherwise stated in the Agreement, you agree that such Feedback will be deemed non-confidential and non-proprietary.
Any content, materials, software, data, or other information that You provide to CaptivateIQ through the CaptivateIQ Services (“Your Content”) is and will remain Your property. You hereby grant CaptivateIQ a worldwide, limited, revocable, non- exclusive right and license to use and reproduce Your Content solely for the purposes of providing the Services to you, and providing Support and carrying out analysis as further described below. For example, we may also have access to and use Your Content when we provide Support or if we provide other assistance or training to You.
In providing the Services, You agree that CaptivateIQ may compile and use information related to you and your use of the Services (including Your Content) that is de-identified and/or aggregated (“De-Identified Data”) and that CaptivateIQ may use De-Identified Data for its lawful business purposes, including analyzing, improving, and enhancing the quality and nature of Services.
If you choose to share Your Content, you are solely responsible for that disclosure, and what any third parties do with Your Content. Likewise, you are solely responsible for any actions you take with respect to Your Content, including deleting or corrupting Your Content. You acknowledge that we are not responsible for the disclosure of Your Content by you or your agents to any third parties.
You are solely responsible for Your Content, including the content, accuracy and integrity of Your Content and for correcting errors and omissions in Your Content. You acknowledge that CaptivateIQ has no obligation to monitor any information on the CaptivateIQ Services and that we are not responsible for the accuracy, completeness, appropriateness, or legality of Your Content or any other information or content you may be able to access using the Services.
All personally identifiable information collected from you is governed by our Privacy Policy.
CaptivateIQ has the right, but not the obligation, to monitor the Site and the Services. CaptivateIQ will do so if required by law or in the good faith belief that such action is necessary to protect CaptivateIQ, the Services, or other users of the Services.
The Services enables linking between various online third-party services such as third party email, cloud storage, and similar services (“Third-Party Services”). To take advantage of these feature and capabilities, you may be required to authenticate, register for or log into Third-Party Services through the Services or on the websites of their respective providers. By linking your account on the Services to your account on a Third Party Service, you are authorizing CaptivateIQ as your agent to access your Third Party Service account (and any information, content, materials, and features included therein) and use such Third Party Service on your behalf for the purpose of integrating your experience on the Services with such Third Party Service. Your use of the Third Party Services is governed solely by the agreement between you and the provider of such Third Party Service, and the Third Party Services provider is solely responsible for such Third Party Service.
You acknowledge and agree that CaptivateIQ will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such Third-Party Services.
You represent and warrant to CaptivateIQ that (a) you have full power and authority to enter into this Agreement and to observe and perform your obligations contained in this Agreement; (b) you own all Your Content or have obtained all rights required to engage in your posting and other activities (and allow CaptivateIQ to perform its obligations and exercise its rights) in connection with the Services; (c) Your Content and other activities in connection with the Services, and CaptivateIQ's exercise of all rights and license granted by you herein, does not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right; (d) you are thirteen (13) years of age or older; and (e) you have provided true, accurate, and correct information to CaptivateIQ in connection with your account creation and use of the Services.
THE SERVICES, INCLUDING THE SITE AND CAPTIVATEIQ’S CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND CAPTIVATEIQ EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER STATUTORY. EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CAPTIVATEIQ DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, OR WILL WORK WITH OR NOT INTERRUPT OR DAMAGE YOUR THIRD PARTY SERVICE OR YOUR CONTENT (INCLUDING ANY CONTENT YOU MAY STORE ON YOUR THIRD PARTY SERVICE), AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM CAPTIVATEIQ OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
CaptivateIQ has the right, in its sole discretion, to terminate your access to and the use of the CaptivateIQ Site and Services at any time without notice to you. We will not be liable to you for any loss, damage or inconvenience suffered as a result of such termination.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL CAPTIVATEIQ BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES), LOSSES, CLAIMS OR LIABILITY, KNOWN OR UNKNOWN (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, GOODWILL, USE OR DATA), ARISING OUT OF THE USE OF (OR INABILITY TO USE) THE SITE, THE SERVICES, OR ANY THIRD-PARTY SITE LINKED TO THE SERVICES. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
The above disclaimer applies to any damages liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or other cause of action.
Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. TO THE EXTENT THAT THE LAWS OF SUCH JURISDICTIONS APPLY, CAPTIVATEIQ's LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
You will defend, indemnify, and hold harmless CaptivateIQ and CaptivateIQ’s processors (and our respective employees, directors, agents, affiliates and representatives) from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from (a) your breach of the Agreement, (b) any of Your Content, (c) your other access, contribution to, use or misuse of the Services or (d) your violation of any law, rule or regulation of the United States or any other country.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Most user concerns can be resolved quickly and to the user’s satisfaction by emailing user support at support@captivateiq.com. In the event that CaptivateIQ has not been able to resolve a dispute with you through binding arbitration, mediation, or small claims court instead of in courts of general jurisdiction, CaptivateIQ and you agree to arbitrate all disputes and claims between us.
ANY ARBITRATION UNDER THESE TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST CAPTIVATEIQ.
Any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provision, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in San Francisco, California. The prevailing party in any action or proceeding to enforce this Agreement will be entitled to recover reasonable costs and attorneys’ fees.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to CaptivateIQ should be addressed to CaptivateIQ, Inc., 480 2nd St, Suite 100, San Francisco, CA 94107, USA (“Arbitration Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If CaptivateIQ and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or CaptivateIQ may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by CaptivateIQ or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or CaptivateIQ is entitled.
Notwithstanding any provision in this Agreement to the contrary, you agree that if CaptivateIQ makes any future change to this arbitration provision (other than a change to the Arbitration Notice Address) while you are a user of the Services by posting the revised version on its website and your continued use of the Services after such posting constitutes your acceptance of such revised version.
Governing Law. This Agreement will be governed by the laws of the United States and the State of California without regard to the principles of conflicts of law (except with respect to federal preemption principles). Unless otherwise elected by CaptivateIQ in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located within San Francisco County, California for the purpose of resolving any dispute relating to your access to or use of the Service not subject to arbitration, as set forth above.
Entire Agreement. The failure of CaptivateIQ to exercise or enforce any right or provision of this Agreement will not be a waiver of that right. You acknowledge that this Agreement is a contract between you and CaptivateIQ, even though it is electronic and is not physically signed by you and CaptivateIQ, and it governs your use of the Service and takes the place of any prior agreements between you and CaptivateIQ. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
Modifications. CaptivateIQ may change this Agreement from time to time. If we do this, we will indicate at the top of this page the date these terms were last revised. We may, if we deemed reasonable under the circumstances, communicate the changes to you through the user interface of the Services. Any such changes will become effective immediately after they are posted to this page. Your continued use of the Services after the date any such changes become effective constitutes your acceptance of the new Agreement, provided that disputes arising hereunder will be resolved in accordance with the Agreement in place at the time the facts giving rise to the dispute occurred.
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