These Terms of Service (the “Terms”) govern the relationship between Capyx, Inc. (hereinafter, “Capyx,” “us,” or “we”) and you regarding your use of this website (the “Website”), Capyx’s stock option management services, and any other of Capyx’s products or services used to facilitate your use of such services (collectively the “Service”). The Service is owned and operated by Capyx.
YOU AGREE THAT CAPYX IS NOT PROVIDING YOU OR ANY USER OF THE SERVICE ANY LEGAL SERVICES OR ADVICE AND YOU ACKNOWLEDGE THAT YOU ARE NOT RELYING UPON CAPYX TO PROVIDE YOU ANY LEGAL SERVICES OR ADVICE. YOU AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO OBTAIN LEGAL COUNSEL AS APPROPRIATE FOR YOUR NEEDS.
IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF THE SERVICE. BY CREATING AN ACCOUNT (AS DEFINED BELOW) OR BY ACCESSING OR USING THE SERVICE OR ANY CONTENT OFFERED THROUGH THE WEBSITE, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU ARE PROHIBITED FROM USING THE SERVICE. IF YOU WERE USING A BETA VERSION OR OTHER VERSION OF THE SERVICE OFFERED PRIOR TO YOUR ACCEPTANCE OF THESE TERMS, THESE TERMS ALSO APPLY TO YOUR PAST USE OF THAT BETA OR OTHER VERSION OF THE SERVICE.
1.1. License Grant For Service. Subject to your agreement to, and continuing compliance with, these Terms and any other relevant Capyx policies, Capyx grants you a non-exclusive, non-transferable, revocable limited right and license to access and use the Service through a web browser. As used in these Terms, “Other User” means another licensee or user of the Service; “All Users” means you and all Other Users.
1.2. Minimum Age Requirement. An individual must be at least 18 years of age to use the Service.
1.3. Accounts and Access. You must register for an account through the Service (an “Account”). You may only register for one Account. An “Account Holder” means the person or entity in whose name an Account is registered. A “Third Party Account” means an Account not registered by you.
1.4. Use of the Service: The following restrictions apply to the use of the Service:
(a) You accept full responsibility for any unauthorized use of the Service by parties not authorized to use any of your Accounts. Additionally, you are responsible for any use of your credit card or other payment instrument (e.g. PayPal) incurred by parties using your Account;
(b) You shall not create an Account using a false identity or false information, or on behalf of someone other than yourself;
(c) Without first obtaining the written permission of Capyx, you shall not register for an Account or in any way use the Service if Capyx has removed, suspended, or otherwise terminated any Account registered for by you, or on behalf of you or if Capyx has notified you that you may not use the Service;
(d) You shall not use your Account to advertise, solicit or transmit any commercial advertisements, including chain letters, junk email or repetitive messages to anyone;
(e) You shall not use the Service to engage in any illegal conduct;
(f) You shall not rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without Capyx’s written permission;
(g) You shall not reproduce, distribute or publicly display any content you access through the Service unless such content is clearly marked as “public” and you have been given the right to view such content; and
(h) You shall not do anything with any content you access through the Service that has been marked with restrictions or other instructions that is counter to such restrictions or other instructions.
1.5. Account Information and Management.
(b) Account Information Updates Not Formal Notice. Changing your address or other contact information on the Capyx site or through the Service will only affect your profile as used by Capyx for Capyx’s internal records for Account management by Capyx as used by Capyx to provide you the Service. CHANGING YOUR ADDRESS THROUGH THE SERVICE DOES NOT CONSTITUTE FORMAL NOTICE BY YOU TO ANY PERSON, ENTITY OR OTHER USER IN CONNECTION WITH ANY SECURITIES HOLDINGS HELD BY YOU OR ANY OTHER USER OR IN CONNECTION WITH ANY OTHER AGREEMENT BETWEEN YOU AND ANY OTHER PERSON, ENTITY OR OTHER USER. You agree that you will not use the Service to deliver or accept any formal notices in connection with securities or other agreements.
(c) Login Information. During the Account creation process, you will be required to select a username and password (“Login Information”). The following rules govern the security of your Login Information:
(i) You shall not share the Account or the Login Information, nor let anyone else access your Account or do anything else that might jeopardize the security of your Account;
(ii) In the event you become aware of, or reasonably suspect, any breach of security, including without limitation any loss, theft or unauthorized disclosure of the Login Information, you must immediately notify Capyx and change the password on your Account;
(iii) You are solely responsible for maintaining the confidentiality of the Login Information and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you; and
(iv) You are responsible for anything that happens through your Account.
(b) Reclaiming Usernames. Capyx reserves the right to remove or reclaim any username at any time and for any reason or no reason, including but not limited to claims by a third party that a username violates the third party’s rights.
1.6. License and Account Limitations and Prohibitions.
(a) General Effects of Violations. Any use of the Service in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited license granted by Section 1, and may subject you to liability for violations of law. Capyx is permitted to list or restrict use of the Service for anyone who Capyx reasonably believes has or will violate any applicable law when using the Service.
(b) Activity Prohibitions. You agree that you will not, under any circumstances:
(i) Engage in any act that Capyx deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms;
(ii) Use the Service in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;
(iii) Modify or cause to be modified any files or content that are used to offer the Service, without the express prior written consent of Capyx;
(iv) Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service (each a “Server”) or (2) the use or enjoyment of the Service by any other person;
(v) Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;
(vi) Gain, or attempt to gain, unauthorized access to the Service, Accounts, Servers or networks connected to the Service by any means (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Service);
(vii) Post any information that is abusive, threatening, obscene, defamatory, libelous or racially, sexually, religiously or otherwise objectionable or offensive;
(viii) Post any information that contains nudity, excessive violence or offensive subject matter or that contains a link to such content;
(ix) Harass, abuse, harm, or advocate or incite harassment, abuse or harm of another person or group of persons, including Capyx employees or customer service representatives;
(x) Post, distribute or make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity or other right of any person or entity or impersonates any other person;
(xi) Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;
(xii) Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms;
(xiii) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server or the Service, whether through the use of a network analyzer, packet sniffer or other device;
(xiv) Make any automated use of the Service or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, as we determine in our sole discretion;
(xv) Bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology or device to send content or messages, scrape, spider or crawl the Service, or harvest or manipulate data from, through, or relating to the Service;
(xvi) Use, facilitate, create or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Service or (2) any connection using programs, tools or software not expressly approved in writing by Capyx;
(xvii) Copy, modify or distribute rights or content from any Capyx site, including but not limited to content that contains or is protected by Capyx’s copyrights or trademarks or use any method to copy or distribute the content of the Service, except as specifically allowed in these Terms;
(xviii) Solicit or attempt to solicit personal information from Other Users, other than from Users with whom you have an existing business relationship and only in connection with a bona fide business purpose for which the Service is intended;
(xix) Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image, video, or other form), identification documents or financial information through the Service; or
(xx) Upload or transmit (or attempt to upload or to transmit), without Capyx’s express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).
1.7. Suspension and Termination of Account and Service:
(a) FAILURE TO COMPLY. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE YOUR ACCOUNT OR YOUR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS OR YOUR ACCOUNT IS USED FOR ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR IMPROPER USE OF THE SERVICE. CAPYX SHALL BE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION, MODIFICATION, OR DELETION OF YOUR OR ANY ACCOUNT.
(b) IP INFRINGEMENT
(i) WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR SITES AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE ANY CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT YOU ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.
(ii) REPEAT INFRINGERS. IN APPROPRIATE CIRCUMSTANCES IT IS OUR POLICY TO SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO ARE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
(a) Right to Cease Service. Capyx reserves the right to stop offering and/or supporting the Service or part of the Service at any time, at which point the license granted hereunder to you to use the Service or a part thereof will automatically terminate. Capyx shall not be required to provide refunds, benefits or other compensation to users in connection with such cessation of the Service or any part thereof.
(b) Termination of Account. Termination of your Account can include disabling your access to the Service or any part thereof, including disabling access to any content that you or Other Users submitted. You agree that if your Account is terminated, Capyx will not be obligated to preserve, provide you access to, or provide copies of any content submitted to the Service relating to your Account, whether by you or an Other User.
(c) Cancellation of Account. You may cancel your Account at any time by contacting us at email@example.com or by using the cancellation feature of the Service.
(d) Effects of Termination. If you are an issuer using the Service in connection with securities you have issued, you hereby grant us permission, in the event that your Account is terminated by either your or us, or in the event that we stop offering the Service or a part thereof, to notify any other parties, that have used the Service for executing documents in connection with your Account, that your Account will be or has been closed or the Service will be or has been discontinued, as appropriate, and notify such parties as to how and when they may obtain copies of any such documents executed through the Service.
1.8. Intellectual Property Ownership in the Service. The Service, and all of its components and contents, (including without limitation any computer code, template content, pre-populated content, concepts, artwork, animations, sounds, musical compositions, audio-visual effects and text contained within) is owned by Capyx or its licensors, and all of which material is protected by United States and international patent, copyright, trademark, trade secret, and other intellectual property laws.
2.1. Posted Content: “Posted Content” means any communications, videos, images, sounds, and all the material, data, and information that you upload, post, publish or transmit through the Service, including without limitation any comments you may make about content uploaded or transmitted by other Account Holders. We may provide you with templates, pre-populated communications, or other content through the Service (“Template Content”) that you may distribute, use or modify as part of using our Service to communicate with Other Users in a manner consistent with the intended use of the Service. You acknowledge that your use of any Template Content does not relieve you of any responsibilities or obligations under this Agreement. By transmitting or submitting any Posted Content while using the Service, you affirm, represent and warrant that such transmission or submission (a) is accurate and not confidential; (b) not in violation of any applicable law, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the Posted Content; (c) along with the exercise of the rights by Capyx granted in Section 2.2 will not result in any infringement of the intellectual property rights of any third party or violate or misappropriate any rights of publicity or privacy for any third party; and (d) is free of viruses, adware, spyware, worms or other malicious code. You further represent and warrant that you have all rights necessary to transmit Posted Content to Capyx and to grant the rights in Posted Content granted to Capyx under these Terms.
2.2. Licenses to Posted Content: You hereby grant Capyx a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, assignable, unlimited license and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works of, manufacture, introduce into circulation, publish, distribute, sublicense, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your Posted Content as well as all modified and derivative works thereof. Capyx will only exercise the rights granted in this Section 2.2 to offer or to facilitate the offering of Services. To the extent permitted by applicable laws, you hereby waive any moral rights or any of your rights of publicity or privacy you may have in any Posted Content. Capyx will cease any further public display or distribution of any Posted Content if you use the features of the Service that permit you to indicate that certain Posted Content is to no longer be displayed or distributed to Other Users except Capyx retains the right to display or distribute any Posted Content as necessary for Capyx to fulfill its legal duties or in connection with bringing or defending any legal claims or actions that may arise now or in the future. YOU FURTHER ACKNOWLEDGE THAT POSTED CONTENT MAY BE TRANSMITTED AND DISPLAYED TO THIRD PARTY SERVICE PROVIDERS OF CAPYX WHO MAY USE, VIEW AND ANALYZE SUCH DATA FOR PURPOSES OF PROVIDING VALUATION SERVICES AND OTHER SERVICES.
2.3 Content Screening.
(a) Consent to Monitoring. By entering into these Terms, you hereby provide your irrevocable consent to our monitoring and recording of your use of the Service. You acknowledge and agree that you have no expectation of privacy vis a vis us or any of our service providers who provide services to us or you as part of Service concerning the transmission of any information, including without limitation chat, text or voice communications.
(b) Options Regarding Posted Content. Capyx may reject, refuse to post or delete any or all Posted Content for any or no reason, including, but not limited to the reason that, in the sole judgment of Capyx, that the contents or posting or other use of such Posted Content in connection with the Service violates these Terms.
2.4 User Interactions and Legal Problems; Releases. You hereby release us, and our officers, directors, agents, subsidiaries, joint ventures and employees, from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute that arises between you and one or more Other Users. If you are a California resident, you acknowledge that you are aware of, and hereby waive your rights under the provisions of California Civil Code Section 1542, which provides: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
You agree to pay any and all fees and applicable taxes incurred by you or anyone using an Account registered to you. Any required fees will be specified as part of the Service or when you register your Account. Capyx reserves the right to charge fees for any parts of the Service that may have previously been offered without a fee. You agree that Capyx in the future may offer premium services as part of the Service that may require fees or additional fees. Capyx may revise the pricing for the goods and services offered through the Service at any time. YOU ACKNOWLEDGE THAT CAPYX IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED PRODUCTS AND SERVICES WHEN YOUR ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
4.2. Links to Third Party Sites and Dealings with Advertisers. Capyx may provide links on the Service to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving a benefit. Any charges or obligations you incur in your dealings with these third parties are your responsibility. Capyx makes no representation or warranty regarding any content, goods, or services provided by any third party even if linked from our Service, and we will not be liable for any claim relating to any third party content, goods, or services. The linked sites are not under the control of Capyx and may collect data or solicit personal information from you. Capyx is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by Capyx of these linked sites.
It is Capyx’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). For more information, please go to Capyx’s “Copyright Page” to review our DMCA procedures. Capyx reserves the right to terminate without notice any user’s access to the Service if that user is determined by Capyx to be a “repeat infringer.” In addition, Capyx accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
You understand that the Service undergoes frequent changes. Capyx may require that you accept updates to the Service in order to continue using the Service. You acknowledge and agree that Capyx may update the Service without notifying you.
7.1. Disclaimer of Warranties.
(a) SERVICE PROVIDED “AS IS”. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY (30) CALENDAR DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).
(b) NO WARRANTY OF ERROR-FREE OPERATION. WITHOUT LIMITING THE FOREGOING, NEITHER CAPYX NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, THIRD-PARTY SERVICE PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “CAPYX PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
(c) NO WARRANTY REGARDING ACCESS TO ACCOUNTS AND CONTENT. CAPYX DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED BY AN ACCOUNT HOLDER WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. CAPYX DOES NOT WARRANT THAT THE SERVICE, ACCOUNT HOLDER INFORMATION OR ANY INFORMATION POSTED BY AN ACCOUNT HOLDER WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL OR ENTITY WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY CAPYX OR THROUGH THE SERVICE.
(d) NO WARRANTY REGARDING ACCURACY OR RELIABILITY OF VALUATION SERVICES. VALUATION SERVICES OBTAINED THROUGH OR IN CONNECTION WITH YOUR USE OF THE SERVICE ARE PROVIDED BY THIRD PARTY SERVICE PROVIDERS, AND ALL SERVICES PROVIDED BY SUCH PROVIDERS ARE SUBJECT TO AND QUALIFIED BY THEIR DISCLAIMERS AND LIMITATIONS OF LIABILITY. YOU ACKNOWLEDGE THAT CAPYX DOES NOT WARRANT OR GUARANTEE THAT ANY VALUATION OBTAINED THROUGH OR IN CONNECTION WITH THE SERVICE WILL BE ACCURATE, RELIABLE, OR ADMISSIBLE IN ANY PROCEEDING OR SUFFICIENT TO DEMONSTRATE THE CONCLUSIONS OF SUCH VALUATION.
7.2. Limitations; Waivers of Liability.
(a) DISCLAIMER OF INDIRECT DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE CAPYX PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.
(b) NOT RESPONSIBLE FOR THIRD PARTY CONDUCT. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE CAPYX PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE CAPYX PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER ACCOUNT HOLDERS OR USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
(c) MONETARY LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE CAPYX PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID CAPYX IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.
(d) FAILURE TO PAY. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID CAPYX ANY AMOUNTS IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH CAPYX IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
(e) DISCLAIMER MAY NOT BE APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.
7.3. Indemnification. You agree to defend, indemnify, save, and hold the Capyx Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein. Capyx reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Capyx and you agree to cooperate with Capyx’s defense of these claims. Capyx will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your Account or of the Service.
8.1 General If a dispute arises between you and Capyx, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Capyx agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to Customer Support. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Other than those matters listed in Section 8.2, you and Capyx agree to seek resolution of the dispute only through arbitration of that dispute in accordance with the terms of this Section 8, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
8.2. Exclusions from Arbitration. YOU AND CAPYX AGREE THAT ANY CLAIM FILED BY YOU OR BY CAPYX IN SMALL CLAIMS COURT OR BY CAPYX RELATED TO PROTECTION OF CAPYX’S OR ANY CAPYX LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 8.
8.3. RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THIS SECTION 8, YOU MUST NOTIFY CAPYX IN WRITING WITHIN THIRTY (30) DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO CAPYX TERMS ADMINISTRATOR, SAMAY PATEL AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR USERNAME, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH CAPYX THROUGH ARBITRATION.
8.4. Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND CAPYX SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
8.5. Initiation of Arbitration Proceeding; Selection of Arbitrator. If you or Capyx elect to resolve your dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“AAA”), www.adr.org, or JAMS www.jamsadr.com. The terms of this Section 8 govern in the event they conflict with the rules of the arbitration organization selected by the parties.
8.6. Arbitration Procedures. Because the software and/or service provided to you by Capyx concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall apply, including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to, and negotiated in good faith with, Capyx as described above, and if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to Capyx or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
8.7. Location of Arbitration. You or Capyx may initiate arbitration in either Los Angeles, California or the county in which you reside. If you initiate arbitration in the county of your residence, Capyx may transfer the arbitration to Los Angeles, California provided that Capyx agrees to pay any additional fees or costs you incur as a result of the change in location, as determined by the arbitrator.
8.8. Severability. If any clause within this Section 8 (other than the Class Action Waiver clause of Section 8.4) is found to be illegal or unenforceable, that clause will be severed from this Section 8 and the remainder of this Section 8 will be given full force and effect. If the Class Action Waiver (Section 8.4) clause is found to be illegal or unenforceable, this entire Section 8, except for this Section 8.8, will be unenforceable and the dispute will be decided by a court and IN THAT INSTANCE, YOU AND CAPYX EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.
8.9. Survival. This Section 8 shall survive any termination of the Terms.
9.3. Assignment. Capyx may assign any of its rights or delegate any of its obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You may not assign or delegate any rights or obligations under the Terms without the prior written consent of Capyx; any purported assignment or delegation in violation of this Section 9.3 is void.
9.4. Supplemental Policies. Capyx may publish additional policies related to specific services such as forums, contests, or loyalty programs. Your use, if any, of such services is subject to such specific policies and these Terms.
1160 Arizona St.
Attn: Terms Administrator
9.8. Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to Capyx are of a unique and irreplaceable nature, the loss of which shall irreparably harm Capyx and which cannot be replaced by monetary damages alone, so that Capyx shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 7.2.
9.9. Force Majeure. Capyx shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Capyx, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond Capyx’s control, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.
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