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Terms of Use – Capacity for Subscribers

Capacity Knowledge Base for EA Subscribers
Services Agreement and Website Terms of Use

BEFORE USING CAPACITY’S PLATFORM (AS DEFINED BELOW), PLEASE READ THIS CAPACITY SERVICES AGREEMENT (“AGREEMENT”). PURSUANT TO THIS AGREEMENT, SUBSCRIBER SHALL RECEIVE THE RIGHT TO ACCESS AND USE THE PLATFORM. THIS AGREEMENT GOVERNS ANY SERVICE ORDER(S) ENTERED INTO BETWEEN AI SOFTWARE, LLC, D/B/A CAPACITY (“CAPACITY”) AND “SUBSCRIBER” AND IS INCORPORATED BY REFERENCE INTO ANY SERVICE ORDER EXECUTED BY SUBSCRIBER AND CAPACITY. THIS AGREEMENT AND THE SERVICE ORDER TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN SUBSCRIBER AND CAPACITY, EFFECTIVE UPON SUBSCRIBER’S ELECTRONIC ACCEPTANCE OF THE SUBSCRIPTION SERVICE ORDER (“EFFECTIVE DATE”). CAPACITY AND SUBSCRIBER MAY BE REFERRED TO INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS “PARTIES”. THIS AGREEMENT IS PERSONAL TO SUBSCRIBER, AN INDIVIDUAL, WHO IS ALSO REFERRED TO AS “USER” IN THIS AGREEMENT.

PLEASE READ THIS AGREEMENT, CAPACITY’S TERMS OF USE AND CAPACITY’S PRIVACY POLICY CAREFULLY BEFORE YOU CLICK ON THE “I ACCEPT” BUTTON IN THE SUBSCRIPTION SERVICE ORDER. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “I ACCEPT” AND DO NOT USE THE PLATFORM OR SERVICES.

1. Services and Responsibilities.

1.1 Provision of Services. During the Term (as defined in Section 3) Capacity will provide Subscriber with, and hereby grants Subscriber a right of and access to, and use of, some or all of the features of Capacity’s artificial intelligence-based support platform (the “Platform”) and the related features (e.g., Knowledge Base, HelpDesk and Workflows), support, integration and other services (together with the Platform, the “Services”). Subscriber Data (as defined below) will be accessible to Subscriber on the Platform.

(a) Service Orders. Subject to the terms and conditions of this Agreement, Capacity will deliver the Services as described in connection with the electronic. service order (the “Service Order”), which is incorporated herein by reference. After the execution of this Agreement, any increases in the scope of the Services (such as additional features, additional software integrations or additional Subscriber business units) shall be subject to a separate Service Order between the Parties, in which case references to Services herein shall also apply to such additional Service Orders, unless otherwise agreed.

(b) Modification of Services. Capacity reserves the right to modify and update the features and functionality or the scope of Services from time to time.

1.2 Capacity’s Responsibilities. Capacity shall: (i) not use or modify the data and information made available to, or submitted by or on behalf of Subscriber to, Capacity for the purposes of the Services (“Subscriber Data”) except to provide the Services or as otherwise set forth in this Agreement; (ii) comply with all applicable laws in providing the Services; and (iii) use commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week, except for: (a) periodic maintenance; (b) downtime caused by circumstances beyond Capacity’s reasonable control, (c) Subscriber’s use of the Services other than in accordance with this Agreement; or (d) at Subscriber’s request. Capacity shall not be responsible or liable for the deletion, alteration, destruction, damage, loss or failure to store any Subscriber Data unless, and only to the extent that, such deletion, alteration, destruction, damage, loss or failure to store any Subscriber Data is directly or proximately caused by Capacity’s actions or breach of this Agreement, subject to any limitations set forth in this Agreement.

1.1 Subscriber’s Responsibilities. Subscriber shall: (i) have sole responsibility for the accuracy, integrity, legality, reliability and appropriateness of all Subscriber Data; (ii) have obtained all necessary consents or otherwise have the right to disclose such Subscriber Data to, or to cause such Subscriber Data to be stored by, Capacity; (iii) prevent unauthorized access to, or use of, the Services; (iv) comply with the restrictions set forth in Section 4.3; (v) comply with all applicable laws in using the Services; and (vi) comply with its own contractual commitments including the End User License Agreements of any third-party software connected to the Platform by or on behalf of Subscriber.

1.2 Export Control. Subscriber and each User shall adhere to all applicable U.S. and foreign export control laws and shall not export or re-export any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the U.S. or any country or organization of nations within whose jurisdiction Subscriber operates.

1.3 Data Protection.

(a) Certain Definitions.

(i) “Data Breach” means unauthorized access or disclosure of Personal Information.

(ii) “Personal Information” means any information that identifies or, in combination with other data, could reasonably be used to identify an individual or household.

(iii) “process” means any operation performed on Personal Information, whether or not by automated means, such as use, disclosure, collection, recording, organization, storage, retrieval, retention, alteration, or dissemination.

(iv) “subprocessor” means any entity which processes the Subscriber’s Personal Information on behalf of Capacity.

(b) Data Security. Capacity will use commercially reasonable efforts to maintain technical, administrative, and physical safeguards to protect against Data Breaches. Capacity’s data security policies and procedures are set forth at www.Capacity.com/privacy-policy.

(c) Personal Information. Capacity shall only process Subscriber’s Personal Information in connection with this Agreement. Subscriber will only allow Capacity access to Personal Information to the limited extent necessary for Capacity to provide the Services, and Subscriber has all rights and consents necessary to allow Capacity to process Personal Information under this Agreement. Unless specified in a Service Order, Subscriber shall not permit Capacity to process, nor provide to Capacity, any data covered by the General Data Protection Regulation (GDPR), Health Insurance Portability and Accountability Act (HIPAA), or Gramm-Leach-Bliley Act (GLBA) or Family Educational Rights and Privacy Act (FERPA).

(d) Data Breaches. In the event Subscriber is affected by a Data Breach as a result of Capacity’s actions or inactions, Capacity will promptly notify the Subscriber of such Data Breach. The notification shall include, to the extent such information is available to Capacity at the time of the breach: (i) the number of records affected and what was contained in those records, (ii) the vector of the breach, (iii) any remediation efforts undertaken by Capacity, and (iv) any efforts taken by Capacity to prevent additional Data Breaches from a similar vector. Capacity will continue to provide Subscriber with additional information on such Data Breach as it becomes available. Each Party shall promptly provide a copy of any notification with respect to such Data Breach sent to any government regulator or data subject to the other Party. In the event that Capacity becomes aware of any Data Breach not as a result of Capacity’s actions or inactions (such as, for example, a User granting unauthorized systems access to a third party), Capacity will notify the Subscriber and cooperate and provide information, on a commercially reasonable basis, to support any remediation efforts, whether such efforts are led by Subscriber or Capacity.

2. Fees and Payment

2.1 Fees. In full consideration for the Services and the rights granted under this Agreement, Subscriber agrees to pay the fees specified in the Service Order(s).

2.2 Invoicing and Payment. All fees and charges under this Agreement will be paid by Subscriber’s credit card, which shall be charged on approximately the Effective Date, and then upon each monthly anniversary thereof until termination.

3. Term and Termination.

3.1 Term of Agreement. This Agreement commences on the Effective Date and continues month to month until terminated by either Party by delivery (pursuant to Section 9.2) to the other Party of a notice of termination upon 30 prior notice (the “Term”).

3.2 Termination for Cause. A Party may terminate this Agreement for cause: (i) if the other Party is in material breach under this Agreement and fails to cure such breach within 30 days of receipt of written notice of such material breach from the non-breaching party; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

3.3 Effect of Termination. In any event of termination of this Agreement, (a) Subscriber will remain liable for any amount due under any outstanding Service Order and (b) all obligations of Capacity under any Service Order will terminate, except that Capacity will wind up its Services under any such then-outstanding Service Orders in a commercially reasonable manner.

4. Proprietary Rights.

4.1 License to Services; Ownership. Subject to the terms of this Agreement, Capacity hereby grants Subscriber a nonexclusive, royalty-free, nontransferable license, solely during the Term, for Subscriber and each User to access and use the Services. Except for the limited rights expressly granted to Subscriber hereunder, Capacity reserves all rights, title and interest in and to the Services, including the Platform and including all related intellectual property rights inherent in the Services. Capacity owns all rights, title and interest in and to all system performance data, metadata, machine learning algorithms, and aggregated results of such machine learning.

4.2 License to Developer Platform; Ownership. To the extent provided in a Service Order, Capacity makes available to Subscriber the use of the developer platform components of the Platform (“Developer Platform”) to develop and maintain applications and services that interoperate with or complement Capacity’s Platform and/or applications. Subscriber authorizes Capacity to host, copy, transmit, display and adapt the online application that Subscriber creates (or Capacity creates on behalf of Subscriber) using, and that interoperates with, the Developer Platform and any program code that Subscriber creates (or Capacity creates on behalf of Subscriber) using the Developer Platform. Capacity reserves all rights, title and interest in and to the Developer Platform, including all related intellectual property rights. For avoidance of doubt, Capacity acquires no right, title or interest in or to Subscriber’s proprietary applications but reserves all rights to the Developer Platform’s program code related to public online applications and public APIs.

4.3 Restrictions. Subscriber and its Users shall not (i) modify, copy, display, republish or create derivative works based on the Services or the underlying software; (ii) reverse engineer the Services or the underlying software; (iii) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services; (iv) license, sublicense, sell, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Services available to any third party, other than to Users and affiliates as contemplated by this Agreement; (v) use commercially reasonable efforts to maintain the security and integrity of the Services; (vi) interfere with or disrupt the integrity or performance of the Services; or (vii) attempt to gain unauthorized access to the Services or its related systems or networks. Subscriber shall be responsible for any violation of this provision by its Users. With respect to the Developer Platform, Subscriber shall not (i) permit any third party to access the Developer Platform except as permitted in a Service Order, (ii) create derivate works based on the Developer Platform, (iii) copy, frame or mirror any part or content of the Developer Platform, other than copying or framing on Subscriber’s own intranets or otherwise for Subscriber’s own internal business purposes, (iv) reverse engineer the Developer Platform, or (v) access the Developer Platform in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Developer Platform.

4.4 Subscriber Data; Usage Data. As between Capacity and Subscriber, Subscriber exclusively owns all rights, title and interest in and to all Subscriber Data. Capacity shall have the right to access and use the Subscriber Data to provide the Services under this Agreement and to confirm compliance with the terms of this Agreement. Capacity may generate and maintain information about the duration and frequency of the use of the Services by Subscriber and Users and collect and maintain User account information (collectively “Usage Data”), which Capacity may use to determine Subscriber fees; to improve, test and provide the Services; and to offer services beyond the scope of Subscriber’s then existing Service Order(s).

4.5 Suggestions. Capacity shall own any suggestions, ideas, enhancement requests, feedback, processes, recommendations or other information suggested or provided by Subscriber or any User relating to the features, functionality or operation of the Services (“Suggestions”) and to the extent that Capacity does not for any reason own such Suggestions, Subscriber shall irrevocably assign, transfer, and convey and hereby irrevocably assigns, transfers and conveys all such rights to Capacity and until such assignment occurs Capacity shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use the Suggestions. Capacity agrees to maintain as confidential the Subscriber as the source of such Suggestions.

5. Confidentiality.

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”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including: the terms and conditions of this Agreement, the Services, the Platform, and each Party’s respective business and marketing plans, technology and technical information, product designs, and business processes. Without limiting the foregoing, Confidential Information of Subscriber includes Subscriber Data, Subscriber’s Personal Information, the proprietary APIs used by Capacity to access Subscriber Data or systems and the API keys and login credentials used by Capacity to access Subscriber Data or systems. The obligations in this Section 5.1 shall not apply to any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; 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.

5.2 Confidentiality Obligations. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party, except as provided in this Agreement, except with the Disclosing Party’s prior written permission or except to its personnel and advisors who have a need to know such Confidential Information and who are subject to confidentiality obligations comparable in scope to those herein. The Receiving Party shall be liable for any breach of confidentiality obligations by its representatives to which it discloses the Disclosing Party’s Confidential Information. After termination of this Agreement the Receiving Party may retain one copy of the Disclosing Party’s Confidential Information in accordance with the Receiving Party’s corporate governance and/or document retention policies, provided that Confidential Information remains confidential pursuant to the terms of and notwithstanding the termination of this Agreement.

5.3 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.

6. Warranties and Disclaimers.

6.1 I.P. Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. Capacity warrants that: (i) it owns or otherwise has sufficient rights in the Services to grant to Subscriber the license to use the Services granted herein; and (ii) the Services do not infringe any third party rights. Subscriber warrants that (i) it owns or otherwise has sufficient rights in the Subscriber Data to grant to Capacity the rights granted herein to access and use the Subscriber Data; (ii) it has the applicable consents (via its employee handbook privacy, policy or otherwise) for Capacity to process Personal Information and Subscriber Data hereunder; and (iii) it has sufficient rights to any “white labelled” trademark for the Services.

6.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITH RESPECT TO WARRANTIES REGARDING NON-INFRINGEMENT OF THIRD PARTY RIGHTS, EACH PARTY’S ONLY OBLIGATION WITH RESPECT TO NON-INFRINGEMENT SHALL BE THE INDEMNIFICATION OBLIGATIONS SET FORTH BELOW IN SECTION 7. WITHOUT LIMITING THE FOREGOING PROVISIONS, CAPACITY MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, VIRUS FREE, OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL SATISFY SUBSCRIBER’S SPECIFIC REQUIREMENTS OR BE COMPATIBLE WITH SUBSCRIBER’S HARDWARE OR SOFTWARE CONFIGURATION OR THAT INACCURACIES OR ERRORS WILL BE CORRECTED.

7. Indemnification.

7.1 Indemnification by Capacity. Subject to this Agreement, Capacity shall defend Subscriber, at Capacity’s expense, against any claims, demands, suits or proceedings made or brought against Subscriber by a third party (“Claims”) alleging that the use of the Services (or the underlying technology used therein) as contemplated hereunder directly misappropriates or infringes a U.S. patent, copyright, trademark or other intellectual property rights of a third party. Further, Capacity shall indemnify and hold Subscriber harmless against all losses, costs and expenses (including reasonable attorneys’ fees) finally awarded against Subscriber 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 Services are held or likely to be held infringing, Capacity shall have the option, at its expense to (i) replace or modify the Services as appropriate without materially diminishing functionality, (ii) obtain a license for Subscriber to continue using the Services, (iii) replace the Services with a functionally equivalent service; or (iv) terminate the Services and refund any prepaid, unused fees applicable to the remaining portion of the Term following the effective date of termination. This Section 7.1 states Capacity’s entire liability and Subscriber’s exclusive remedy for any claim of intellectual property infringement.

Notwithstanding the foregoing, Capacity will have no obligation or liability relating to any Claim that: (i) is based on modifications or customizations of the Services, or to content, at the direction of Subscriber, (ii) results from Subscriber’s use of the Services in a manner that is inconsistent with its intended use or is in breach of this Agreement, (iii) is based on any Subscriber Data, or any use of or compliance with any specifications, requirements, instructions or materials provided by or on behalf of Subscriber, (iv) is based on content provided by Capacity’s co-pilots and approved by Subscriber, (v) is based on an incorrect classification by Subscriber, or at the direction of Subscriber, of a User’s access rights, or (vi) is based on incorrect classification of Subscriber Data by Subscriber, or at the direction of Subscriber.

7.2 Indemnification by Subscriber. Subject to this Agreement, Subscriber shall defend Capacity, at Subscriber’s expense, against any Claims made or brought against Capacity by a third party alleging that the Subscriber Data or Subscriber’s use of the Services in a manner other than as authorized under this Agreement or in violation of any End User License Agreement of third-party software connected to the Capacity Platform by or on behalf of Subscriber, infringes or otherwise violates a third party’s property, privacy or other rights . Further, Subscriber shall indemnify and hold Capacity harmless against all losses, costs and expenses (including reasonable attorneys’ fees) finally awarded against Capacity by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by Subscriber, in connection with such Claims.

7.3 Indemnification Procedures. Promptly upon receiving notice of a Claim, the indemnified party shall (i) give the indemnifying party prompt written notice of the Claim; (ii) give the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle without the consent of indemnified party, which shall not be unreasonably withheld or delayed); and (iii) provide to the indemnifying party, at the indemnifying party’s cost, all reasonable assistance in the defense or settlement of such Claim. Promptly upon receiving notice of a Claim, the indemnified party shall (i) give the indemnifying party prompt written notice of the Claim; (ii) give the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle or defend any claim unless it unconditionally releases the indemnified party of all liability); and (iii) provide to the indemnifying party, at indemnifying party’s cost, all reasonable assistance in the defense or settlement of such Claim.

8. Limitation of Liability.

8.1 Limitation of Liability. EXCEPT DAMAGES FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, 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 SUBSCRIBER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
8.2 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.

9. General Provisions.

9.1 Relationship of the Parties. The Parties are independent contractors.

9.2 Notices. Notices of termination under Section 3.1 may be sent as follows: if to Capacity to jeremey@capacity.com and if to Subscriber to the email address on the Service Order. All other 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 on the first page of this Agreement (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.

9.3 Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

9.4 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, 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.

9.5 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 Missouri, without giving effect to its conflicts of laws rules.

9.6 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 obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control and cannot be remedied by the exercise of reasonable diligence, including, without limitation: (a) acts of God including pandemic; (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; (h) failure of a third party API, and (g) Internet service provider or hosting facility failures, or delays involving hardware, software or power systems not within Capacity’s possession or reasonable control (each a “Force Majeure Event”). The affected Party shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). The affected Party shall promptly notify the other Party and make reasonable efforts to mitigate the effects of the Force Majeure Event with reasonable dispatch and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.

9.7 Publicity. Either Party may describe its role in relation to the other Party and, if applicable, the Services provided to the other Party on its website and promotional materials.

9.8 Entire Agreement. This Agreement and the related Service Orders constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement. No amendment of this Agreement shall be effective unless in writing and signed by the Parties. If there is a conflict between this Agreement and the terms contained in a mutually executed Service Order, the terms of the Service Order will control.

9.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

9.10 Survival. The terms and conditions of this Agreement that by their sense and context are intended to survive after performance of the Services hereunder shall survive the termination or expiration of this Agreement.

EFFECTIVE DATE: May 19, 2020

Capacity Terms of Use

Introduction

These terms are effective as of October 11, 2019.

This is the website (“Site”) of Ai Software, LLC, and its subsidiaries and affiliates, doing business as Capacity.  By accessing or using any features of this Site, you agree to be bound by these terms of use (“Terms of Use”). All visitors to and users of any aspects of the Site (“User(s)”) are bound by these Terms of Use. Your access to, and use of, the Site constitutes your acceptance of all the provisions of these Terms of Use. If you are unwilling to be bound by these Terms of Use, do not access or use the Site.

Some of the services provided by Capacity may be subject to additional posted conditions or a separate written agreement. Your use of those services is subject to those conditions, which are incorporated into these Terms of Use by reference. In the event of a conflict between the additional conditions and these Terms of Use, the additional conditions will apply.

Use of the Site is subject to all applicable laws and regulations. Nothing contained in these Terms of Use shall limit Capacity’s right to comply with governmental, judicial, and law-enforcement requests or requirements relating to your use of the Site.

Eligibility

The Site is not targeted towards, nor intended for use by, anyone under the age of 18. By using the Site, you represent and warrant that you are 18 years of age or older. If you are not at least 18 years of age, do not access, use or register an account on the Site.

Privacy

Capacity believes strongly in the protection of the privacy of Users. Data collection and the use of data collected from the Site is governed by our Privacy Policy which we encourage you to review. We may change our Privacy Policy and practices over time. 

Copyright Notice

All pages on this Site are subject to Capacity copyright notices and intellectual property rights. All materials, including images, text, illustrations, graphics, designs, icons, photographs, programs, video clips and written and other materials that are part of this Site and any compilation thereof (“Contents”) are copyrights, trademarks, trade dress and/or other intellectual property owned, controlled or licensed by Capacity, one of its subsidiaries or affiliates, or by third parties who have licensed their materials to Capacity. The Contents are protected by U.S. and international copyright laws, and Capacity and its licensors expressly reserve all intellectual property rights in the Contents. Access to, or use of, this Site does not confer, and shall not be considered as conferring upon anyone, any license, assignment, or grant of any intellectual property rights except as expressly stated in these Terms of Use. You may not reproduce, publish, transmit, distribute, display, publicly perform, modify, create derivative works from, sell or participate in any sale of, resell, lend, loan, lease, license, sublicense, transfer or exploit in any way, in whole or in part, any of the Contents, the Site or any related software. All software used on this Site is the property of Capacity or its software suppliers and is also protected by U.S. and international copyright laws.

Any unauthorized use of the Contents is subject to all applicable penalties available to the copyright owner under the applicable copyright laws.

Trademark Notice

The Capacity name and logos and all related product and service names, design marks and slogans are the trademarks or service marks of Capacity. All other marks are the property of their respective owners. No trademark or service mark license is granted in connection with the Contents. Access to, or use of, this Site does not authorize anyone to use any name, logo or mark in any manner whatsoever.

Feedback

If you provide Capacity any feedback or suggestions regarding Capacity, the Site, or the Contents (“Feedback”), you hereby assign to Capacity all rights in the Feedback and agree that Capacity shall have the right to use such Feedback and related information in any manner it deems appropriate without a duty of accounting to you.  Capacity will treat any Feedback you provide to Capacity as non-confidential and non-proprietary. You agree that you will not submit to Capacity any information or ideas that you consider to be confidential or proprietary.

Account Security

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Site or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to, or use of, your user name or password or any other breach of security, and you will cooperate with us in responding to and mitigating any such unauthorized access or other breach of security. 

Accuracy of Information

While Capacity uses reasonable efforts to ensure that the Contents are accurate and up-to-date, Capacity makes no warranties or representations as to the accuracy or completeness of the Contents or the reliability of any advice, opinions, statements, articles, or other information displayed or distributed through this Site. YOU ACKNOWLEDGE AND AGREE THAT ANY RELIANCE ON ANY SUCH ADVICE, OPINIONS, STATEMENTS, ARTICLES, OR OTHER INFORMATION SHALL BE AT YOUR SOLE RISK. CAPACITY RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CORRECT ANY ERRORS OR OMISSIONS IN ANY PORTION OF THIS SITE. This provision may be void, inapplicable, and unenforceable under certain state laws.

Capacity Services, Platform and Specifications

All services, platforms, specifications, products, features, and content described or depicted on this Site are subject to change at any time without notice. The inclusion of any services, platforms, specifications, products, features, or content on this Site at a particular time does not imply or warrant that they will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws in regard to the access to, or use of, any services, platforms, specifications, products, features, or content licensed by Capacity. 

Disclaimer

THIS SITE IS PROVIDED BY CAPACITY ON AN “AS IS” AND “AS AVAILABLE” BASIS. CAPACITY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENTS, PLATFORMS, SERVICES OR MATERIALS INCLUDED ON THIS SITE INCLUDING ANY REPRESENTATIONS OR WARRANTIES THAT THE SITE OR THE INFORMATION, CONTENTS, PLATFORMS, SERVICES OR MATERIAL THEREON WILL BE ACCURATE, COMPLETE, TIMELY, OR ERROR-FREE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, CAPACITY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. YOU ACKNOWLEDGE, BY YOUR USE OF THIS SITE, THAT SUCH USE IS AT YOUR SOLE RISK. THIS DISCLAIMER DOES NOT APPLY TO ANY PRODUCT WARRANTY OFFERED THROUGH ADDITIONAL POSTED CONDITIONS OR A SEPARATE WRITTEN AGREEMENT. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THESE TERMS OF USE. SOME STATES DO NOT ALLOW SUCH LIMITATIONS, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.

Indemnification

You hereby agree to indemnify, defend, and hold harmless Capacity and its employees, members, managers, directors, officers, agents, vendors or suppliers (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation (“Claim”) against any such Indemnified Party arising in any manner from: (1) your access to or use of the Site or Contents, (2) your violation or alleged violation of applicable laws, (3) your negligence or willful misconduct in connection with your use of the Site or Contents, or (4) your breach or alleged breach of any provision of these Terms of Use.  Capacity will use reasonable efforts to provide you with notice of any such Claim. Capacity will have the right to participate in the defense of any such Claim at its expense; and you will not enter into any settlement that admits any liability on behalf of any Indemnified Parties without the prior written consent of the applicable Indemnified Parties.

Limitation of Liability

UNDER NO CIRCUMSTANCES WHATSOEVER AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL CAPACITY OR ANY OF ITS EMPLOYEES, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, AGENTS, VENDORS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, RELIANCE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR PUNITIVE OR EXEMPLARY DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THIS SITE AND THE CONTENTS, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR HARDWARE, SYSTEM OR NETWORK FAILURE OR MALFUNCTION, EVEN IF CAPACITY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CAPACITY BE LIABLE FOR ANY DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THIS SITE. ANY CLAIM OR CAUSE OF ACTION YOU MAY HAVE WITH RESPECT TO YOUR USE OF THIS SITE AND THE CONTENTS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES.

Termination and Suspension

These Terms of Use will remain in effect until terminated by either you or Capacity. You may terminate these Terms of Use at any time by ceasing to access the Site. You acknowledge and agree that Capacity may terminate your access to all or any part of the Site, with or without notice, for any or no reason, in its sole discretion, without liability of any kind.  Capacity may also, in its sole discretion and at any time, discontinue providing the Site, or any part thereof, with or without notice, without liability of any kind. Upon termination or expiration of these Terms of Use for any reason: (1) all rights granted to you under these Terms of Use will terminate; and (2) you will immediately cease all use of and access to the Site.  Any section of these Terms of Use which, by its nature, should survive the termination of these Terms of Use shall so survive. 

Without limiting Capacity’s right to terminate these Terms of Use, Capacity may also suspend your access to the Site or any Content, with or without notice to you, upon any actual, threatened, or suspected breach of these Terms of Use or applicable law or upon any other conduct deemed by Capacity in its sole discretion, to be inappropriate or detrimental to Capacity or any third party.

Links to Third-Party Websites

References on this Site to any names, marks, products or services of third parties or hypertext links to third-party sites or information are provided solely as a convenience to you and do not in any way constitute or imply Capacity’s endorsement, sponsorship or recommendation of the third party, or its sites, information, products or services. If you use those websites, you will leave this Site. If you decide to visit any linked website, you do so at your sole risk, and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. Capacity makes no warranty or representation regarding any third-party website, information, products or services.

Linking to this Site

All links to this Site must be approved in writing by Capacity, except that Capacity consents to your use of links in which: (i) the link is a text-only link containing only the name “Capacity”; (ii) the link “points” only to www.capacity.com and not to deeper pages; (iii) the link, when activated by a User, displays that page full-screen in a fully operable and navigable browser window and not within a “frame” on the linked website; and, (iv) the appearance, position, and other aspects of the link may neither create the false appearance that an entity or its activities or products are associated with, endorsed by, or sponsored by Capacity, nor be such as to damage or dilute the goodwill associated with the name and trademarks of Capacity. Capacity reserves the right to revoke this consent to link at any time in its sole discretion.

Revisions to Terms of Use and this Site

Capacity reserves the right, at its sole discretion, to change, modify, revise, add or remove any portion of these Terms of Use in whole or in part, at any time and from time to time. Changes to these Terms of Use will be effective when such changes are posted to the Site, which constitutes notifying you of such changes. Your continued use of this Site after any change will be considered acceptance of those changes. Capacity may terminate, change, suspend or discontinue any aspect of the Site, including the availability of any features of the Site, at any time and from time to time. Capacity may also impose limits on certain features and services or restrict your access to parts or all of the Site without notice or liability. 

Restrictions on Rights to Use

Without limiting the generality of any other provisions of these Terms of Use, you agree you shall not (and you agree not to allow any other individual or entity to):

  • use or access, or attempt to use or access, the Site except as expressly provided in these Terms of Use;
  • download, modify, reproduce, adapt, translate, reverse engineer, disassemble, decompile, create derivative works based upon, publicly display, sell, rent, lease, loan, lend, license, sublicense, transfer or in any way commercially exploit any portion of the Site or the Contents, except as, and to the extent, expressly permitted under these Terms of Use (if at all);
  • remove any copyright, trademark or other proprietary rights notice contained in or on the Site or the Contents;
  • use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Site;
  • reformat or frame any portion of any Web pages that are part of the Site;
  • monitor the availability, performance or functionality of the Site;
  • create User accounts by automated means or under false or fraudulent pretenses;
  • create or transmit to other Users unsolicited electronic communications, such as “spam,” or otherwise interfere with other Users’ enjoyment of the Site;
  • submit to the Site any content that falsely states or implies that such content is sponsored or endorsed by Capacity;
  • transmit or upload to the Site any item containing or embodying any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of the Site, any other Web site, or any computer or other device or system, or the enjoyment of the Site by any;
  • use the Site to violate the security of or gain unauthorized access to any computer or computer network or other device or system (including unauthorized attempts to discover passwords or security encryption codes);
  • submit to the Site any content that is unlawful or facilitates, constitutes, promotes or encourages illegal activity; or otherwise use the Site to transfer or store illegal material, including any material deemed threatening or obscene;
  • copy or store any Contents offered on the Site other than for your personal, non-commercial use;
  • use the Site to, intentionally or unintentionally, violate any applicable local, state, federal or international law; or
  • collect or store personal data about other Users of the Site.

International Users

This Site is controlled, operated and administered by Capacity from its offices within the United States of America. Capacity makes no representation that materials at this Site are appropriate or available for use at other locations outside of the United States, and access to such materials from territories where their contents are illegal is prohibited. You may not use the Site or export the Contents in violation of U.S. export laws and regulations. If you access this Site from a location outside of the United States, you are responsible for compliance with all local laws, rules and regulations.

Entire Agreement, Severability, Waiver, Attorneys’ Fees, Choice of Law and Jurisdiction

These Terms of Use constitute the entire agreement between Capacity and you with respect to your use of this Site. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of these Terms of Use, and the remainder of these Terms of Use shall continue in full force and effect. Any waiver by either party of a breach of any provision of these Terms of Use will not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of these Terms of Use. These Terms of Use shall be governed by the laws of the State of Missouri, United States of America, without regard to its conflicts of laws principles, and the federal law of the United States of America. You acknowledge that the provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are not applicable to any transaction with Capacity. Any action to enforce these Terms of Use shall be brought in the federal or state courts located in St. Louis, Missouri, United States of America, and you hereby consent and submit to the exclusive jurisdiction and venue of such courts and waive any objection to such exclusive jurisdiction or venue.

Equitable Relief

You acknowledge that any breach or threatened breach of these Terms of Use by you will result in irreparable harm for which damages would not be an adequate remedy, and, therefore, in addition to its rights and remedies otherwise available at law, Capacity will be entitled to seek immediate equitable relief, including injunctive relief, as appropriate.  Capacity will be entitled to the relief described in this section without the requirement of posting a bond. If Capacity seeks any equitable remedies, it will not be precluded or prevented from seeking remedies at law, nor will it be deemed to have made an election of remedies. 

Website Security

You are prohibited from violating or attempting to violate the security of this Site, including, without limitation, (a) accessing data not intended for you or another User or logging onto a server or an account which you or another User is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any User, host or network, including, without limitation, via means of submitting a virus to this Site, overloading, “flooding,” “spamming,” “mail-bombing” or “crashing”; (d) sending unsolicited email, including promotions and/or advertising of products or services; or (e) forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting. Violations of system or network security may result in civil or criminal liability. Capacity will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Site or any activity being conducted on this Site.

Copyright Violation Notice

If you feel the content of this Site violates your copyright, please send a notice of the violation to: Capacity, Attn: General Counsel, 6665 Delmar Blvd, St. Louis, MO 63130.

Your notice must include (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are claimed to have been infringed and are covered by a single notification, a representative list of such works, (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Capacity to locate the material, (iv) information reasonably sufficient to permit Capacity to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted, (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the exclusive right, its agent, or the law; and, (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Upon receipt of a notice of claimed infringement that satisfies these requirements (or any statement in conformance with 17 U.S.C. § 512(c)(3)), Capacity will act expeditiously to remove or disable access to any Content that is claimed to be infringing upon the copyright of any person under the laws of the United States.

Questions and Communications

If you have any questions about these Terms of Use, you can contact Capacity as follows: send an e-mail to us at info@capacity.com.