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Capacity Terms of Use

Introduction

These website terms of use (“Terms of Use”) are effective as of February 5, 2024.

This is the website (“Site”) of Ai Software, LLC d/b/a Capacity, Denim Social, LumenVox and Textel.  For purposes of these Terms of Use, the owner of the Site is referred to as “Capacity”, which includes all of our brands, subsidiaries and affiliates. By accessing or using any features of this Site, you agree to be bound by these Terms of Use. All visitors to and users of any aspects of the Site (“User(s)”) are bound by these Terms of Use. Capacity expressly reserves the right to modify the Terms of Use at any time and from time to time without prior notice to you. 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, you should not access or use the Site.

Most of the services provided by Capacity are subject to additional legal terms and conditions set forth in Service Orders and other online and offline agreements. Your use of those services is subject to those legal terms and conditions, which are incorporated into these Terms of Use by reference. In the event of a conflict between the additional legal terms and conditions and these Terms of Use, the additional legal terms and 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.

Intellectual Property

All text, graphics, photographs, trademarks, logos, icons, user interfaces, sounds, music, videos, artwork, software and computer code (collectively, “Content”), including but not limited to the “look and feel”, layout, design, structure, color scheme, selection, combination and arrangement of the Content present on the Sites is owned by or licensed to Capacity. Such Content is protected by copyright, trademark, trade dress and various other intellectual property and unfair competition laws.

Except with our express prior written permission or as permitted by applicable laws, you may not copy, distribute, reproduce, mirror, frame, publicly display, publicly perform, translate, create derivative works of, re-publish or transmit the Sites or Content (in whole or in part) in any way or through any medium for distribution, publication or any commercial purpose.

You may display, copy and download Content from the Sites solely for your personal and non­-commercial use provided that: (a) you do not remove any copyright or proprietary notice from the Content; (b) such Content will not be copied or posted on any networked computer or published in any medium; and (c) no modifications are made to such Content.

Feedback and Suggestions

If you provide Capacity any feedback or suggestions regarding the Site or its Content (“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.  Capacity owns 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”).  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 Subscriber.  

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 the Content of the Site are accurate and up-to-date, Capacity makes no warranties or representations as to the accuracy or completeness of the Content of the Site 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.

Services, Platform and Specifications

All services, platforms, specifications, prodcts, 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, license or sale of any services, platform, 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, CONTENT, 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 A SEPARATE WRITTEN AGREEMENT OR LEGAL TERMS AND CONDITIONS REGARDING OUR SERVICES. 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 its Content, (2) your violation or alleged violation of applicable laws, (3) your negligence or willful misconduct in connection with your use of the Site or its Content, 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, DIRECTORS, MANAGERS, 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 ITS CONTENTS, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, HARDWARE, SYSTEM, NETWORK OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF CAPACITY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL AI 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 CONTENT OF EACH 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 the Capacity endorsement, sponsorship or recommendation of the third party, information, product or service. 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 the Capacity Site

All links to the Capacity 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 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 its Content;
  • 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 content from 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 Content is illegal is prohibited. You may not use the Site or export the Content of the Site 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 your 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., Ste 300, St. Louis, MO 63130 or to legal@capacity.com.

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 legal@capacity.com.