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Private Cloud License Agreement

Revised and effective: March 26, 2026

AI Software, LLC, d/b/a Capacity and Capacity (Capacity) has updated our Private Cloud License Agreement (Agreement) between Capacity and the licensee (Licensee or Subscriber). If Licensee is a new licensee, then this License Agreement will be effective as to Licensee's order entered into after March 26, 2026. If Licensee is an existing licensee as of the effective date above under an end-user license, private cloud license, consumption-based or perpetual license for on premises or private cloud, then Capacity is providing Licensee with prior notice of the changes to our agreement which will be effective as of one month after the effective date above. For the previous version of our end-user license agreement, please click here.

This Capacity Private Cloud License Agreement constitutes the terms and conditions for Licensee's use of the Software Product in Licensee's private cloud environment or on premises. The Software Product(s) provided pursuant to this Agreement are licensed, not sold, to Licensee for use only under the terms of this Agreement. Please read this Agreement carefully. By downloading, installing, copying, or otherwise using the Software, Licensee agrees to be bound by the terms and conditions of this Agreement and become a Party to this Agreement. If Licensee does not agree with all the terms and conditions of this Agreement, Licensee should not download, install, copy or otherwise use the Software.

Any Software Product(s) provided to Licensee under a separate private cloud, end-user or reseller license agreement is licensed to Licensee under the terms of that agreement, except to the extent this Agreement is cross-referenced in which case it shall apply.

THE SOFTWARE PRODUCT IS PROTECTED UNDER U.S. AND INTERNATIONAL COPYRIGHT LAWS, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES.

1. DEFINITIONS.

The following definitions apply to this Licensing Agreement:

  • 1.1. "License Agreement" and "Agreement" shall mean the terms and conditions described herein as well as any attachments and appendices and all future addenda, if any.
  • 1.2. "Licensed Environment" shall mean the servers, computer systems, virtual machine configurations, or private cloud instances owned, operated, and controlled by Licensee on which the Software is to be installed and operated pursuant to the terms of this Agreement and the terms of the applicable Service Order.
  • 1.3. "Maintenance" means a subscription (usually included in subscription licenses or usage licenses) for updated versions, corrections, bug fixes, and patches to the Software that Capacity issued from time to time at Capacity's sole discretion as to timing and content.
  • 1.4. "Party" shall mean Capacity and Licensee, the parties to this Agreement.
  • 1.5. "Server" shall mean a computer system comprising one or more computer processors and an administrative program that controls access to all or part of a group of interconnected computers and associated devices.
  • 1.6. "Software" shall mean the software licensed by Capacity hereunder, including associated media.
  • 1.7. "Software Product" shall mean collectively "Software" and "User Documentation".
  • 1.8. "User Documentation" shall mean the electronic documentation with respect to the Software.
  • 1.9. "Licensee" refers to the individual or legal entity that enters into this License Agreement (the licensee or subscriber) with Capacity.
  • 1.10. "Updates" means new versions or releases of the Software that Capacity makes generally available to licensees who have purchased and maintain a then-current license including a Maintenance subscription.

2. GRANT OF LICENSE.

  • 2.1. Grant of License. Capacity hereby grants to Licensee a non-transferable, nonexclusive right, without the right to sublicense, to: (i) install, load, copy, or transmit the Software, in whole or in part, in object-code-only form; (ii) use the Software in the Licensed Environment; or (iii) copy the User Documentation as authorized in this License Agreement. Licensee's service order form or quote indicates what type of license Term that Licensee has purchased (such as subscription, consumption-based or perpetual).
  • 2.2. Updates to Software. From time to time, Capacity may provide Updates, but Capacity has no obligation to develop or release any Updates. Any Updates are part of the Software Product and governed by this License Agreement (unless other terms of use are provided with such Updates) and this Agreement terminates as to the previous version of the Software. Licensee may install and use an Update only if Licensee has a validly licensed full version of the Software being Updated. Capacity reserves the right to modify the Software at any time, provided that Capacity will not materially decrease the core functionality of the licensed Software during an active subscription Term except as required for legal compliance or security purposes.
  • 2.3. Limited License Software. If the Software Product is identified Not for Resale, NFR, Eval, or Developer Version or is a proof-of-concept installation, then Licensee's use of the Software Product is limited to use for demonstration, test, or evaluation purposes and Licensee may not use for commercial purposes, resell, derive revenue from, or otherwise transfer or use for value, the Software Product.
  • 2.4. No Configurations to Bypass Restrictions. Licensee may not configure the Server that manages the Software on a machine configuration, virtual machine configuration, or otherwise to duplicate or bypass Capacity's licensing restrictions and requirements.
  • 2.5. No Saving or Reuse of Output Text-to-Speech (TTS) Software. Licensee shall not save, cache, or store TTS-generated voices or audio for any purpose, including for later playback, redistribution, or incorporation into applications, products, or other materials. Licensee shall not rent, resell, lease, lend, or otherwise make TTS-generated audio available to any third party, or make it publicly available. Any reuse of previously synthesized audio is a separate use requiring a separate license and
  • 2.6. Backup/Archival Copies. During the Term, Licensee may make and keep archival copies of the Software as provided in the copyright law of the United States, but no other copies of the Software or User Documentation or any portions thereof may be made by Licensee or any person under Licensee's authority or control.
  • 2.7. Delivery. Capacity will make the Software available for electronic download from a secure location designated by Capacity, along with a license key required to activate the Software. Delivery is deemed complete upon Capacity making the Software and license key available, regardless of whether Licensee has downloaded, installed, or activated the Software.
  • 2.8. Installation and System Requirements Updates. Licensee is solely responsible for installing, configuring, and maintaining the Software in the Licensed Environment. Licensee is solely responsible for procuring, maintaining, and securing the Licensed Environment, including all hardware, operating systems, network infrastructure, and third-party software necessary to operate the Software. Capacity may update system requirements from time to time upon notice to Licensee. Capacity may, at its sole discretion and for additional fees set forth in a separate Service Order, provide installation assistance as a professional service.
  • 2.9. Activation. According to its discretion, Capacity may include features in the Software to prevent unlicensed use of the Software, and Licensee agrees that Capacity may do so. During activation of the Software, Capacity may collect certain non-personal technical information from Licensee's computer concerning Licensee's computer or network. Licensee agrees that Capacity may do so.
  • 2.10. Licensing Verification. The Software periodically communicates with Capacity's cloud-based licensing servers via the Internet to verify license status. This connection must be maintained or the Software will stop functioning. If Licensee's usage exceeds the purchased license count, Licensee will be responsible for paying for such excess usage.

3. OTHER RIGHTS AND LIMITATIONS.

  • 3.1. Limitation on Reverse Engineering, Decompilation, and Disassembly. Licensee may not reverse engineer, decompile, or disassemble the Software Product.
  • 3.2. Performance or Benchmark Testing. Licensee may not disclose the results of any benchmark test of the Software Product to any third party without Capacity's prior written approval.
  • 3.3. Usage Data. Capacity may generate and maintain information based on Licensee's use of the Software Products and collect and maintain account information, provided that such information does not identify Licensee or any user or include any of Licensee's personal information (collectively Usage Data). As between Capacity and Licensee, Capacity owns all right, title, and interest, including all intellectual property rights, in and to all Usage Data and may use any Usage Data for any purpose. Capacity may also collect and maintain billing records, call, text or messaging logs and traffic routing information, as well as the content of communications sent through or integrated with our Software Products, such as audio recordings, message bodies, and call recording transcriptions.
  • 3.4. Suggestions. Capacity owns any suggestions, ideas, enhancement requests, feedback, processes, recommendations or other information suggested or provided by Licensee relating to the features, functionality or operation of the Software Products (Suggestions). To the extent that Capacity does not for any reason own such Suggestions, Capacity may, but is not obligated, to use such Suggestions for any purpose with no financial, credit, confidentiality or other obligation to Licensee.
  • 3.5. Technical Support. Capacity offers technical support for versions of the Software released within the last two (2) years (i.e., the last 24 months) or the two (2) most recent major releases, whichever is greater. All releases outside this window are deprecated and unsupported. Technical support is described by Capacity on its support website and includes assistance with installation, configuration, and licensing, and commercially reasonable help working around technical issues. Capacity technical support does not include end-user application development or troubleshooting; assistance with non-Capacity systems, networks, or deployment environments; or application tuning, grammar development, or user training. Additional support may be purchased separately from Licensee's license. Support information is available at https://privatecloud.capacity.com/.
  • 3.6. Maintenance. If Licensee maintains a license to the Software that includes Maintenance, then Capacity will use commercially reasonable efforts to provide Maintenance.
  • 3.7. Export Compliance. Licensee shall adhere to all applicable U.S. and foreign export control laws and regulations and shall not export, re-export, or transfer the Software Product, or any related technology to any person or destination in violation of such laws, including without limitation the Export Administration Regulations administered by the U.S. Department of Commerce and the sanctions programs administered by the U.S. Office of Foreign Assets Control. Licensee represents and warrants that Licensee is not (a) located in, organized under the laws of, or ordinarily resident in a country or territory subject to U.S. government embargo or comprehensive sanctions, (b) identified on any U.S. government denied-party or restricted-party list, or (c) acting on behalf of any such person or entity. Licensee shall indemnify and hold harmless Capacity from and against any claims, fines, penalties, or losses arising from Licensee's failure to comply with this Section 3.6.
  • 3.8. Audit Rights. Capacity or its designated representative may, upon at least thirty (30) days' prior written notice, audit Licensee's installation and use of the Software no more than once per calendar year to verify Licensee's compliance with the license terms and restrictions of this Agreement, including applicable Service Order limitations. Any audit shall be conducted during Licensee's normal business hours and in a manner reasonably designed to minimize disruption to Licensee's operations. Licensee shall cooperate fully with Capacity and provide reasonable access to Licensee's Licensed Environment, relevant records, and knowledgeable personnel as reasonably necessary to complete the audit. If an audit reveals that Licensee has used the Software Product in excess of the licensed scope or otherwise in breach of the license restrictions set forth herein, Licensee shall promptly pay Capacity the applicable fees for such excess or unauthorized usage at Capacity's then-current list rates, plus interest at the rate set forth in this Agreement from the date of first excess use. If an audit reveals that the fees actually owed exceed the fees actually paid by more than five percent (5%) for the audited period, Licensee shall also reimburse Capacity for the reasonable out-of-pocket costs of conducting the audit. Capacity's audit rights under this Section are in addition to, and not in lieu of, any other rights or remedies available to Capacity under this Agreement or applicable law.

4. TITLE AND INTELLECTUAL PROPERTY RIGHTS.

  • 4.1. Licensee understands and acknowledges that all title and intellectual property rights in and to the Software Product (excluding only Licensee's proprietary data that Licensee provides or uploads to the Software), including but not limited to all software, algorithms, interfaces, data, system performance data, metadata, machine learning algorithms and aggregated results of such machine learning, data structures, conversation flows, designs, images, photographs, animations, video, audio, music, text, and applets incorporated into the Software, and all hardware and systems used to provide the Software Product, and any copies that Licensee is permitted to make herein, are owned exclusively by Capacity. All updates, upgrades, enhancements, modifications, suggestions for modifications, and improvements to the Software Product shall be owned exclusively by Capacity. Licensee is granted no right or license to use Capacity Content (meaning third-party content licensed to Capacity or code created for interoperation with third-party and public APIs) apart from using the Software Product as expressly permitted herein. Licensee covenants, on behalf of itself and its successors and assigns, not to assert against Capacity any rights, or any claims of any rights, in the Software Product.
  • 4.2. As between Capacity and Licensee, Licensee retains ownership of Licensee's proprietary data and content submitted to or processed by the Software Product; provided, however, that this acknowledgment shall not limit Capacity's rights to Usage Data or Communications Data as set forth in this Agreement. Licensee understands that all title and intellectual property rights in and to the content which may be accessed through use of the Software Product is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and international treaties. This License Agreement grants Licensee no rights to use such content.
  • 4.3. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Capacity's or its suppliers' or licensors' ownership of or rights with respect to the Software Product. Licensee grants Capacity the right to use, compile (including creating statistical and other models), annotate, and otherwise analyze call recordings, audio files, text, SMS or chat communications, surveys, cases and associated transcripts, log files, and metadata received by Capacity or generated in connection with the Software Product to develop, train, tune, enhance, and improve the Software, including but not limited to the creation of a common database of common words, utterances, and phrases from multiple Capacity licensees that can be used to enhance and improve the Software Product.
  • 4.4. Capacity® is a federally registered trademark of Capacity. All business names, logos, and product and service names associated with the Software Product are trademarks of Capacity. Licensee is granted no right or license to use any Capacity trademarks and covenants not to assert any such right, license, or interest with respect to any trademarks of Capacity.

5. CONFIDENTIAL INFORMATION.

  • 5.1. Definition of Confidential Information. "Confidential Information" means all confidential and proprietary information of a Party ("Disclosing Party") disclosed to the other Party ("Receiving Party") that is designated as confidential at the time of disclosure or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure. Without limiting the foregoing, Confidential Information of Capacity includes the Software Product, source code, algorithms, innovations, concepts, trade secrets, technical specifications, product roadmaps, pricing, and business information. Without limiting the foregoing, Confidential Information of Licensee includes Licensee's proprietary business data and system configurations disclosed to Capacity in connection with this Agreement.
  • 5.2. Confidentiality Obligations. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose other than as expressly permitted under this Agreement, without the Disclosing Party's prior written permission, except to its employees, contractors, and advisors who have a need to know such Confidential Information and who are bound by confidentiality obligations at least as protective as those set forth herein. The Receiving Party shall be solely liable for any breach of confidentiality obligations by any representative to whom it discloses the Disclosing Party's Confidential Information. The Receiving Party shall protect the Disclosing Party's Confidential Information using at least the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care.
  • 5.3. Exceptions. The obligations in this Section 5 shall not apply to any information that: (i) is or becomes generally known to the public through no wrongful act or breach by the Receiving Party; (ii) was rightfully known to the Receiving Party prior to its disclosure by the Disclosing Party, without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.
  • 5.4. Duration. The Receiving Party's obligations with respect to the Disclosing Party's Confidential Information shall survive termination or expiration of this Agreement for a period of five (5) years; provided, however, that obligations with respect to any Confidential Information that constitutes a trade secret under applicable law shall continue for so long as such information remains a trade secret.
  • 5.5. Remedies. The Receiving Party acknowledges that any actual or threatened breach of this Section 5 would cause irreparable harm to the Disclosing Party for which monetary damages would be an inadequate remedy. Accordingly, the Disclosing Party shall be entitled to seek injunctive or other equitable relief to prevent or restrain any such breach, without the requirement to post bond or other security and without prejudice to any other rights or remedies available at law or in equity.

6. WARRANTY, IP INDEMNIFICATION, DISCLAIMERS, LIMITATIONS.

  • 6.1. Mutual Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that it has and will maintain the legal power and authority to enter into this Agreement.
  • 6.2. Capacity Representations and Warranties. Capacity represents, warrants, and covenants to Licensee that it owns or otherwise has and will maintain sufficient rights to grant to Licensee the license to use the Software Products granted herein.
  • 6.3. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 6.2, THE SOFTWARE PRODUCT IS PROVIDED TO LICENSEE ON AN AS IS WHERE IS BASIS AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW CAPACITY HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES CONCERNING THE SOFTWARE PRODUCT, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. FURTHER, CAPACITY MAKES NO REPRESENTATION, WARRANTY OR GUARANTY: (1) AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OF THE SOFTWARE PRODUCT OR GENERATED OUTPUT; (2) THAT THE SOFTWARE PRODUCT WILL MEET LICENSEE'S REQUIREMENTS OR EXPECTATIONS; (3) THAT USE OF THE SOFTWARE PRODUCT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA OF LICENSEE; (4) THAT THE SOFTWARE PRODUCT WILL BE FREE OF SECURITY FLAWS; OR (5) ANY WARRANTIES RELATED TO LICENSEE'S CERTIFIED PRODUCTS OR THE PERFORMANCE, SUFFICIENCY, OR CHARACTERISTICS THEREOF.
  • 6.4. IP Indemnification by Capacity. Subject to this Agreement, Capacity shall defend Licensee against any claims, demands, suits or proceedings made or brought by a third party ("Claims") against Licensee alleging that the use of the Software Products as permitted hereunder directly misappropriates or infringes any U.S. patent, copyright, trademark or other intellectual property rights of such third party. Further, Capacity shall indemnify and hold harmless Licensee against all losses, costs and expenses (including reasonable attorneys' fees) finally awarded against Licensee by a court of competent jurisdiction or an arbitrator or agreed to in a written settlement agreement signed by Capacity, in connection with such Claims. If the Software Products are held or likely to be held infringing, Capacity shall have the option, at its expense to (a) replace or modify the Software Products as appropriate without materially diminishing functionality, (b) obtain a license for Licensee to continue using the Software Products, (c) replace the Software Products with a functionally equivalent service; or (d) terminate the Software Products and refund any prepaid, unused fees applicable to the remaining portion of the Term following the effective date of termination. This Section states Capacity's entire liability and Licensee's exclusive remedy for any Claim of intellectual property infringement or misappropriation. Capacity will have no obligation or liability relating to any Claim that is based on: (i) Licensee's modifications or customizations of the Software Products; (ii) Licensee's use of the Software Product in combination with any software or other product or material not provided by Capacity; (iii) any changes made to the Software Product by Capacity to comply with Licensee's specifications, designs or modifications, (iv) Licensee's use of the Software Product other than as contemplated by this Agreement; or (v) compliance with any laws or regulations applicable to Licensee's industry that are not applicable to software providers generally.
  • 6.5. Indemnification Procedures. Promptly upon receiving notice of a Claim, Licensee shall (a) give Capacity prompt written notice of the Claim; (b) give Capacity sole control of the defense and settlement of the Claim; and (c) provide to Capacity all reasonable assistance in the defence or settlement of such Claim.
  • 6.6. Limitation of Liability. EXCEPT DAMAGES FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR EXCEPT FOR FAILURE TO PAY FEES, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM LICENSEE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
  • 6.7. Exclusion of Consequential and Related Damages. EXCEPT FOR DAMAGES FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  • 6.8. Limitations on Usages. THE SOFTWARE PRODUCT IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE TECHNOLOGY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
  • 6.9. No Change to Obligations. NO RESELLER OF CAPACITY IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OR INDEMNIFICATION OBLIGATIONS OF CAPACITY AS SET FORTH HEREIN.
  • 6.10. Indemnification by Licensee. Subject to this Agreement, Licensee shall indemnify, defend, and hold harmless Capacity and its officers, directors, employees, agents, successors, and assigns against any and all claims, demands, suits, proceedings, losses, costs, damages, and expenses (including reasonable attorneys' fees) ("Losses") made or brought by any third party: (a) alleging that Licensee's data, content, or materials, or Licensee's use of the Software Product in a manner not authorized under this Agreement, infringes or misappropriates any third party's intellectual property rights or violates any third party's privacy or other rights; (b) arising from Licensee's breach of any representation, warranty, covenant, or obligation under this Agreement; (c) arising from any modifications or customizations Licensee makes to the Software Product or from Licensee's combination of the Software Product with any software, hardware, data, or materials not provided by Capacity; (d) arising from Licensee's violation of any applicable law or regulation in connection with Licensee's use of the Software Product, including without limitation any export control laws; or (e) brought by any authorized user with respect to Licensee's acts or omissions in connection with Licensee's administration or distribution of the Software Product. Licensee shall not settle any Claim in a manner that imposes any obligation, restriction, or liability on Capacity without Capacity's prior written consent, not to be unreasonably withheld.

7. TERM; TERMINATION.

  • 7.1. The term of Licensee's license is set forth in Licensee's service order form or quote ("Term"). Without prejudice to any other rights, Capacity may terminate this License Agreement, if Licensee fails to comply with the terms and conditions of this License Agreement. Upon termination of this License Agreement, Licensee must cease all use of the Software Product and must destroy all copies of the Software Product and all of its component parts and shall certify to Capacity in writing that such obligation has been completed. Furthermore, in the event of termination, Licensee agrees that Capacity may cause Licensee to cease to use the Software Product.

8. UNITED STATES GOVERNMENT RESTRICTED RIGHTS.

The Software is "commercial computer software" and related documentation is "commercial computer software documentation," as defined in FAR 2.101, developed exclusively at private expense by AI Software, LLC d/b/a Capacity. If the Software is acquired by or on behalf of the U.S. Government, the Government's rights to use, reproduce, and disclose the Software are governed solely by the terms of this Agreement, consistent with FAR 52.227-19 and DFARS 227.7202. No additional rights are granted beyond those expressly set forth in this Agreement.


9. GENERAL PROVISIONS.

  • 9.1. Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its conflicts of laws rules.
  • 9.2. Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party (which consent shall not unreasonably withheld), except that either Party may assign this Agreement in its entirety, with written notice to the other Party, but without the consent of the other Party, if (a) to an affiliate, or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, and their respective successors and permitted assigns. No assignment or delegation shall relieve the assigning or delegating party of any of its obligations hereunder.
  • 9.3. No Waiver. The failure of either party to enforce any rights granted thereunder or to take action against the other party in the event of any breach thereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
  • 9.4. Section Headings. The section headings are for convenience only and do not form a part of this License Agreement for purposes of interpretation.
  • 9.5. Publicity. Either Party may describe its role in relation to the other Party and, if applicable, the Software Product on its website and promotional materials.
  • 9.6. Changes to this Agreement. This Agreement is subject to change by Capacity upon thirty (30) days' prior written notice to Licensee. Capacity will take reasonable steps to notify Licensee of any material changes or modifications to this Agreement by way of prominent notice on the Capacity website, via the Software application, or by email to the address set forth in Licensee's Service Order. Licensee's continued use of the Software Products after expiration of the thirty (30) day notice period will be deemed conclusive acceptance of such changes or modifications. If Licensee does not agree to any such changes, Licensee's sole remedy is to terminate this Agreement prior to the effective date of the changes by providing written notice to Capacity in accordance with Section 9.10.
  • 9.7. Entire Agreement. This Agreement (including any addendum or amendment to this License Agreement which is included with the Software Product) is the entire agreement between Licensee and Capacity relating to the Software Product and the Support Services (if any) and supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Software Product or any other subject matter covered by this License Agreement. To the extent the terms of any Capacity policies or programs for Support Services conflict with the terms of this License Agreement, the terms of this License Agreement shall control. In the event of a conflict in terms arising out of multiple versions of this Agreement, the precedence of control shall be as follows: First, this Agreement available at https://capacity.com/legal/; second, the license agreement at the time of download; and third, any written license agreement.
  • 9.8. Third-Party and Open Source Software. The Software Product includes software licensed from various third parties and open source software. A list of such third-party and open source components is available upon Licensee's written request.
  • 9.9. No Third-Party Beneficiaries. Nothing in this Agreement shall confer any right, remedy or obligation upon anyone other than the Parties hereto.
  • 9.10. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a notice) shall be in writing and addressed to the Parties at the addresses set forth in the Service Order (or to such other address that may be designated by the receiving party from time to time in accordance with this Section). All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), e-mail (with a copy promptly sent by mail) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective for e-mail on the day received unless sent after business hours, then the next day, for courier on the day of receipt and on the 3rd day after mailing any notice by certified or registered mail. A copy of any notice to Capacity shall be sent to legal@capacity.com.
  • 9.11. Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligation to make payments hereunder), when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the affected Party's reasonable control that cannot be remedied by the exercise of reasonable diligence, including, without limitation: (a) acts of God, including pandemic or epidemic; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; and (h) Internet service provider or hosting facility failures or delays involving hardware, software, or power systems not within the affected Party's possession or reasonable control (each, a "Force Majeure Event"). The affected Party shall be relieved from its obligations (or part thereof) for so long as the Force Majeure Event continues to hinder performance. The affected Party shall promptly notify the other Party in writing of the Force Majeure Event and shall use commercially reasonable efforts to minimize its effects and resume performance as soon as practicable.
  • 9.12. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be modified to the minimum extent necessary to make it valid, legal, and enforceable, or if such modification is not possible, such provision shall be severed from this Agreement. The invalidity, illegality, or unenforceability of any one provision shall not affect the validity, legality, or enforceability of any remaining provision of this Agreement, all of which shall remain in full force and effect.
  • 9.13. Dispute Resolution. Any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof (collectively, "Disputes") shall be resolved exclusively by binding arbitration administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures then in effect, conducted by a single arbitrator in St. Louis, Missouri, or by videoconference at Capacity's sole election. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding the foregoing, the following matters are excluded from the arbitration requirement: (a) Capacity's right to seek injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property rights, trade secrets, Confidential Information, or to enforce payment obligations under this Agreement or any Service Order, without the requirement to post a bond or other security; and (b) any claim that can be brought in a small claims court. Each party may only bring Disputes against the other in its individual capacity, and not as a plaintiff or class member in any purported class, collective, or representative proceeding, whether in arbitration or otherwise. The arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of class, collective, or representative proceeding. If any Dispute brought by Licensee is determined by the arbitrator or a court to be frivolous, vexatious, or brought in bad faith, then Licensee shall reimburse Capacity for all reasonable attorneys' fees, costs, and expenses incurred by Capacity in defending against such Dispute. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. If any portion of this dispute resolution provision is deemed invalid or unenforceable, then the parties agree that all Disputes shall be resolved exclusively by the state or federal courts located in Delaware, and each party hereby irrevocably consents to the exclusive personal jurisdiction and venue of such courts.
  • 9.14. Survival. The following provisions shall survive expiration or termination of this Agreement for any reason: Section 1 (Definitions, to the extent necessary to interpret surviving provisions); Section 3.3 (Usage Data); Section 3.4 (Suggestions); Section 3.6 (Export Compliance); Section 3.7 (Audit Rights); Section 4 (Title and Intellectual Property Rights); Section 5 (Confidential Information, subject to the duration set forth therein); Section 6.3 (Disclaimer); Section 6.4 (IP Indemnification); Section 6.5 (Indemnification Procedures); Section 6.6 (Limitation of Liability); Section 6.7 (Exclusion of Consequential Damages); Section 6.10 (Indemnification by Licensee); Section 7 (Term; Termination, as to post-termination obligations); Section 8 (U.S. Government Restricted Rights); and Section 9 (General Provisions). In addition, any payment obligations accrued prior to expiration or termination of this Agreement shall survive such expiration or termination. The survival of any provision shall not limit any right or remedy of Capacity for Licensee's breach of this Agreement prior to such expiration or termination, and all such rights and remedies shall continue in full force and effect following expiration or termination.