Last Updated: November 27, 2018
PLEASE READ CAREFULLY BEFORE USING THE SERVICES OF THIS WEBSITE
These terms and conditions (“Terms”) are a legal agreement between you (“Client” or “you”) and CapSumo, LLC (“CapSumo”, “we”, “us”, or “our”) for the subscription services provided by CapSumo to you under these Terms using the Software via www.capsumo.com or any other website notified to you by CapSumo from time to time (“Services”).
We allow you to use the Services on the basis of these Terms. We do not sell the Software to you. We remain the owners of the Software at all times.
It is agreed
CapSumo, LLC. provides certain services through our website located at capsumo.com, as well as such other websites or mobile applications that we own or operate (collectively, the “CapSumo Website”, or “Our Website”). Users of Our Website include persons or entities that register through Our Website (each, a “Client” and collectively, “Clients”), who, in turn, own and operate their own websites or mobile applications (“Client Site(s)”), and who wish to utilize our code, software and services and reports (the “ Data Collection Service(s)”) to collect and obtain online form information (”Client Data”) on third party visitors to their Client Sites (“Client Site Visitor(s)”) are interacting with their Client Sites (“Visitor Information”). Users of Our Website may also include persons or entities who are otherwise visiting Our Website (“Other Users”).
TO USE OUR WEBSITE OR ANY OF THE SERVICES, YOU MUST BE AT LEAST 16 YEARS OLD. IF YOU ARE LESS THAN 16 YEARS OLD, YOU MAY NOT USE OUR WEBSITE OR SERVICES. IF YOU ARE UNDER THE AGE OF 18, YOU MAY ONLY USE THE OUR WEBSITE OR SERVICES UNDER THE SUPERVISION OF A PARENT OR LEGAL GUARDIAN.
1. ACCOUNT REGISTRATION AND ACCESS
To register for the Data Collection Service and create an account, you must complete the registration process by providing CapSumo with the information prompted by the registration form, including e-mail address (username), password, and billing information. You agree to provide us with complete and accurate information when you register for the Data Collection Service, and to keep such information up to date. Our Website may allow you to login to your account through online accounts you may have with third party social networking sites such as Google. You agree and acknowledge that your use of such social network services is subject to such terms and conditions and / or privacy policies of such social network sites, and agree to abide by such requirements.
You shall protect your username and password and are solely responsible for activities that occur under or through your account, including activities initiated by third parties, whether or not such activities are authorized by you. If you allow an employee or agent to access the Data Collection Service on your behalf, you shall ensure that such third party is bound by, and abides by, the terms of this Agreement. You agree to notify CapSumo immediately of any unauthorized use of your account or any other breach of security relating to your account or your use of the Data Collection Service.
CapSumo may access your account, or information associated with your account, to provide support or maintenance, for security-related reasons, or any other business purpose. You acknowledge and consent to such access.
2. LICENSE FROM CAPSUMO
3.1 Subscription Terms
CapSumo offers a range of subscription plans to its Data Collection Services, including, without limitation, a “Basic Plan,” a “Standard Plan,” a “Plus Plan,” a “Pro Plan,” and “Custom Plans.” As an express condition of your use of and access to the Data Collection Service, you agree to pay all fees applicable to your subscription plan (your “Plan”), any other fees for additional services you may purchase, and any applicable taxes in connection with your use of the Data Collection Service. To view the specific details of your Plan, including pricing information and the commencement date of your next renewal period, visit the CapSumo Website, login at https://www.capsumo.com/login and from the navigation select “Your Settings”, then “Billing”, then “Subscription” after logging in.
The Data Collection Service is priced based on usage, determined by the number of page views (each, a “Visit”) of a registered web page for a Client Site for a specified usage period (each, a “Session”). With respect to each such Client Site, CapSumo will not, and will have no obligation to, collect, maintain, provide or analyze any further information relating to your Client Site, analyze such information in reports or provide information or reports once you (i) reach the maximum number of Visits for your Session, as specified in your Plan; or (ii) reach the maximum amount of usage time for your Session, as specified in your Plan, whichever occurs first.
3.2 Changes in Fees
We may, upon any notice required by applicable law, change the fees for the Data Collection Service at any time or require new fees or charges. Such changes will be effective immediately upon posting on Our Website; provided, however, that such fee changes will be effective only as to prospective Data Collection Service orders (including renewals) accepted by CapSumo after the effective date of such change. Please be aware that any discounts applicable to previous subscriptions may not apply to renewed subscriptions.
3.3 Payment of Fees
Your Plan, which may start with a Free Trial Period (described below), will renew automatically and continue month-to-month or year-to-year (depending on your Plan) unless and until you cancel your Plan or we terminate it, in each case pursuant to the terms of this Agreement (see Section 3.6 (Account Cancellation) and Section 12 (Term and Termination)). You must cancel your Plan before it renews in order to avoid fees due under the next billing cycle. To view the specific details of your Plan, including the commencement date of your next renewal period, visit the CapSumo Website, login at http://www.capsumo.com/login and from the navigation select “Your Settings”, then “Billing”, then “Subscription” after logging in. We will bill the fees due under your Plan to the credit card you provide to us during registration (or to a different credit card if you change your payment information). You acknowledge that the amount billed for each renewal period may vary due to promotional offers, changes in your Plan, and changes in applicable taxes, and you authorize us to bill you the corresponding amounts.
We reserve the right to deactivate your access to the Data Collection Service for failure to pay applicable fees as described in this Agreement. Unless otherwise stated, all fees are stated in U.S. Dollars.
3.4 Credit Card Payments
All fees for your Plan will be billed to your credit card. You authorize the card issuer to pay any amounts described herein and in your Plan and authorize us (or a billing agent acting on our behalf) to continue charging all such amounts to your credit card account until you or we cancel or terminate your Plan as provided herein or these amounts are paid in full, whichever is later. You must provide current, complete and accurate billing and credit card information. You must promptly update all billing information (such as billing address, card number and expiration date) to keep your account current, complete and accurate, and you must promptly notify CapSumo if your credit card is lost or stolen, or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your username or password). You authorize us to obtain updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right to charge any renewal card issued to you as a replacement. If payment is not received from your credit card issuer, you agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. Please check with your bank and credit card issuer for details.
3.5 Payment Terms, Refunds, and Upgrade and Downgrade Terms
- The fees for your Plan are billed in advance, are non-refundable, and automatically renew on a monthly or annual basis, as specified in your Plan. With the exception of the Trial Period (described below), no refunds or credits will be provided for partial months of the Data Collection Service, upgrades/downgrades, or for months unused with an open account.
- If you downgrade your Plan level, your credit card will automatically be charged the new rate beginning with your next billing cycle. Downgrading your Plan may cause the loss of account content, features, or capacity. CapSumo does not accept any liability for such loss.
- If you upgrade your Plan level, your credit card will immediately be charged a pro-rated amount reflecting the increased rate, and you will be charged the full amount of the new rate beginning with your next billing cycle.
- Any discounts applied to a previous subscription may not apply to a renewed subscription, including to any automatic renewals.
3.6 Account Cancellation
- The only valid method for canceling your Plan is via the cancellation link provided on the “Your Settings”, page, accessible after logging in to the CapSumo Website. Requests to cancel by e-mail or phone are not considered, and do not accomplish, cancellation.
- If you cancel your Plan before the end of your current pre-paid period, you will not be charged again for your Plan beginning with the next billing cycle. If you cancel your Plan, you will lose all access, upon the expiration of your current pre-paid period, to the Data Collection Service and any data or information stored in your account (see Section 12 (Term and Termination) for additional details). If you cancel your Plan during a Free Trial Period or Trial Period, effective upon such cancellation, you will immediately lose all access to the Data Collection Service and any data or information stored in your account.
3.7 Free Trial Period
- CapSumo may offer, during the registration process, a one-time free trial period during which you can try out the Data Collection Service for 30 days from the date you register to use the Data Collection Service without pre-paying in advance (“Free Trial Period”). To view the specific details regarding your Free Trial Period, if any, visit the CapSumo Website, login at https://www.capsumo.com/login and from the navigation select “Your Settings”, then “Billing”, then “Subscription” after logging in.
- If you participate in a Free Trial Period, you must cancel the Data Collection Service by the end of the Free Trial Period to avoid incurring any charges. If you do not cancel the Data Collection Service before the Free Trial Period expires, you authorize us to charge your credit card the full cost of your Plan, as described to you during the registration process. Your Plan will then automatically renew and continue month-to-month or year-to-year (depending on your Plan), unless and until you cancel your Plan or we terminate it (see Section 3.6 (Account Cancellation) and Section 12 (Term and Termination)). You will not receive a notice from CapSumo that your Free Trial Period is about to end or has ended.
- In some instances, the available balance or credit limit on the credit card provided during the registration process may be reduced to reflect the pre-authorization of certain de minimis charges related to your Plan; however, no charges will be made against your credit card unless you do not cancel prior to the end of your Free Trial Period.
- You may cancel your Plan at any time during the Free Trial Period by following the steps described in Section 3.6 (Account Cancellation). Upon cancelling your account, you will immediately lose all access to the Data Collection Service and any data or information stored within your account (see Section 12 (Term and Termination) for additional details).
- CapSumo reserves the right to modify, cancel and/or limit the Free Trial Period offer at any time.
4. LICENSES TO CAPSUMO
4.1 License to Client Data
The terms of this Section 4.1 (License to Client Data) apply to you if you are a Client:
As between the parties, you shall retain ownership of any information, data and statistics that CapSumo obtains from your Client Site, such as raw data and log files generated by the Data Collection Service.
You hereby grant to CapSumo a royalty-free, non-exclusive, irrevocable, right and license to access your Client Site(s) and to collect any information concerning Client Site Visitors’ actions or activities on your Client Site(s), any information sent to you by Client Site Visitors’ web browsers concerning such Client Site Visitors’ activities prior to visiting your Client Site(s) (e.g., URL information and HTTP header information), and/or any data or other information you provide to CapSumo or that is otherwise accessible from your Client Sites (collectively “Client Data”) for (i) providing you the Data Collection Service, including, without limitation, any reports and other functions related to the Data Collection Service; (ii) analyzing and improving the Data Collection Services generally; (iii) review, compile, or analyze aggregate data derived from the Data Collection Services to compile statistics, metrics, insights, general trend data about the Data Collection Service for, among other things, marketing and promotional purposes.
In addition, you grant CapSumo the right to access Client Data for the purposes of (A) providing you with reports and other functions related to the Services; (B) analyzing and improving the Services; and (C) compiling aggregate data derived from your use of the Services to compile statistics, metrics, insights and general trend data about the Services for, among other things, marketing and promotional purposes.
4.2 License to Material Which You Post
By posting any software, information, data, databases, music, audio, video or audiovisual files, photographs, images, documents, text, digital files, forum messages, reviews, comments or other material (“Material”) to Our Website, you hereby grant CapSumo an irrevocable, perpetual, non-exclusive, royalty-free, sub-licensable worldwide license to reproduce, adapt, distribute, perform or publicly display all or any portion of the Material on our Services. You further represent and warrant that you own all rights to such Material and that this license does not infringe the rights of any third party or violate any applicable law or regulation.
5.1 Cookies Used by the CapSumo Script for Client Site Visitors
5.2 Client Data
You shall own all rights, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
5.3 In the event of any loss or damage to Client Data, your sole and exclusive remedy shall be for CapSumo to use reasonable commercial endeavors to restore the lost or damaged Client Data from the latest back-up of such Client Data provided to you by CapSumo.
5.4 CapSumo shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by CapSumo to perform services related to Client Data maintenance and back-up).
5.5 In providing the Services, CapSumo shall process Personal Data of End Users or that Personal Data otherwise within the Client Data on your behalf and the parties record their intention that in respect of such processing you, the Client, shall be the Data Controller. and CapSumo shall be a Data Processor and in any such case.
5.6 Clients are solely responsible for compliance with applicable laws regarding any Personally Identifiable Information that may be collected by the Client Site and accessed by the CapSumo Technology in the performance of the Services, including, by way of example but not limitation, through the recording of any forms or multimedia content submitted by or recorded from Client Site Visitors, or through logging mouse clicks or keystrokes by Client Site Visitors on the respective Client Sites. CapSumo otherwise disclaims, to you and to any Client Site Visitor, any liabilities with respect to any use or storage of Visitor Submitted Content; such disclaimers shall be included amongst the Flow-Down Provisions described at the end of this Section 5.2 (Client Data).
Your CapSumo account is protected by a username and password, and should be accessed only by you or your authorized employees or agents accessing the Services on your behalf. For maximum protection, you should protect against unauthorized access to your username and password and remember to log off when using any shared computer or device. CapSumo has implemented reasonable security mechanisms to protect your information and Client Data from loss, misuse and unauthorized access, disclosure, alteration and destruction. Examples of these security mechanisms include limited access, firewalls and SSL encryption to protect transmission of data. However, please keep in mind that no security system is impenetrable. It may be possible for third parties to intercept or access Client Data, information you provide to CapSumo, information we compile on your behalf, and/or information that we collect about you. CapSumo cannot guarantee the security of such information and is not responsible for unauthorized access to Client accounts. We disclaim any liability for any theft or loss of, unauthorized access or damage to, or interception of any data or communications of Clients, Client Site Visitors, or Other Users.
5.8 CapSumo Limits Access to Your Information
5.9 Aggregate Reports
5.11 Data Collection Services Not Available for Websites Directed to Children
You may not use the Data Collection Services in connection with any website labeled or described as a “Kid’s” or “Children’s” website or any website directed at individuals under the age of 16. Each Client hereby represents and warrants that all of its Client Site Visitors are age 16 or over. If you wish to use a separate version of our service in connection with websites that are directed at individuals under age 16, please reach us at email@example.com.
6. PROPRIETARY RIGHTS; RESTRICTIONS ON USE
6.1 Content on the CapSumo Website
Any opinions expressed by the contributors, authors and moderators who post content to the CapSumo Website are the personal opinions of the authors, not of CapSumo, whether or not the authors are employees or contractors of CapSumo. The CapSumo Website and all materials published and/or distributed on or through the CapSumo Website (including, but not limited to news articles, photographs, images, illustrations, audio clips and video clips) are provided for informational and entertainment purposes only and are not meant to be an endorsement or representation by CapSumo or any other party. You are solely responsible for your use of and access to any galleries, forums, chat rooms, blogs, message boards, online hosting or storage services, or other areas or Services on Our Website in which you or other users may create, post or store Materials (the “Interactive Areas”) and you will use the Interactive Areas at your own risk. You understand that when using the Our Website, you may be exposed to Material provided by other users or content provided by other third parties, and you agree that we are not responsible for the accuracy, safety, appropriateness or intellectual property rights in or related to such Materials or content. Users can be held liable for any illegal or prohibited Materials they provide to Our Website, including among other things, infringing, defamatory or offensive materials. If you discover this kind of material on the Site, please notify us at firstname.lastname@example.org. We will investigate your claim and may then take the actions deemed appropriate.
6.2 Disclaimers of Third Party Content.
“CapSumo,” the CapSumo logo, and any other product or service name or slogan displayed on our Site are the trademarks of CapSumo Inc and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of CapSumo or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “CapSumo” or any other name, trademark or product or service name of CapSumo without our prior written permission. In addition, the look and feel of our Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of CapSumo and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in our Site are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us.
6.4 Your Feedback.
You acknowledge and agree that any feedback, ideas, suggestions, or proposals that you provide (“Feedback”) in the form of email or other submissions to us (including, but not limited to, any status or other updates) or otherwise post on or provide via Our Website will, to the maximum extent permissible under applicable laws, automatically become our sole property, and you hereby assign to us, exclusively and throughout the world, all rights, title, and interests in such Feedback, all intellectual property rights embodied therein, and otherwise, you hereby grant us a perpetual, irrevocable, worldwide, fully-paid up, royalty free, assignable, sub-licensable license to use, reproduce, display, create derivative works of, make, sell, have made, have sold, import, export or otherwise exploit any such Feedback. You are not entitled to any acknowledgment, compensation or reimbursement in connection with such Feedback or grant of rights to same. By providing such Feedback, you acknowledge and agree that: (a) your Feedback do not contain confidential or proprietary information; (b) we are not under any obligation of confidentiality, express or implied, with respect to the Feedback; (c) we will be entitled to use or disclose (or choose not to use or disclose) any Feedback for any purpose, in any way, in any media worldwide; (d) we may have something similar to the Feedback already under consideration or in development; (e) your Feedback automatically become our property without our obligation to you; and (f) we may, but are not obligated to, review or monitor areas on Our Website where users may transmit or post Feedback.
Except for the limited licenses expressly granted herein, CapSumo expressly reserves all right, title and interest in and to the CapSumo Script, content on the CapSumo Website, and all processing, analytics, and other software and technology used by CapSumo in the Data Collection of your Client Site and/or the provision of the Data Collection Service (“CapSumo Technology”), including, without limitation, any derivatives, improvements, enhancements or extensions of the CapSumo Technology conceived, reduced to practice or otherwise developed on or on behalf of CapSumo, all of which are valuable assets of CapSumo, and any copyright, patent or trademark or other intellectual property right, or federal or state right, pertaining thereto.
6.6 Restrictions on Use
You shall not (i) use, or allow the use of, the Services or any CapSumo Technology, except pursuant to the limited rights expressly granted in this Agreement; (ii) use the Services in any manner that is inconsistent with user documentation, if any, supplied to you by CapSumo or inconsistent with CapSumo’s standard security procedures, if any, accessible through your user interface; (iii) attempt to reverse engineer, hack into, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or compromise any aspect of the Services or CapSumo Technology, or attempt to access data of any other Client of CapSumo; (iv) remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by CapSumo; (v) use, post, transmit or introduce any device, software or routine that interferes or attempts to interfere with the operation of the Services; (vi) use the Services, or any CapSumo Technology, for academic research or research unrelated to your Visitors or the Client Site web page(s) registered for use with the Services, contemplated litigation, scholarship, or any other unintended purpose; (vii) post or transmit any libelous, defamatory, indecent, obscene, abusive or pornographic message, data, image or program; (viii) post or transmit any message, data, image or program that would violate any property rights of others; (ix) upload or download files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights to such files or have received all necessary consents;(x) deep-link to Our Website for any purpose, unless specifically authorized by us in writing to do so; or (xi) use the Services to threaten, harass, or otherwise violate the legal rights (including rights of privacy and publicity) of others; (xii) use any of the Client Data or personal profile reports or other information generated as part of the Services for any illegal or unlawful purposes; (xiii) install or attempt to install the “CapSumo Script” on any website other than the Client Website(s); (xiiii) access all or any part of the Software or the Services in order to build a product or service which competes with the Services.
You agree to indemnify, hold harmless and (if requested by CapSumo) defend CapSumo, our affiliates, licensors, and their respective independent contractors, service providers, consultants, directors, officers, employees and agents, and applicable third parties (such as licensors, partners and advertisers (collectively, the “Indemnified Parties”) harmless at your expense, against any and all third-party claims, actions, proceedings, and suits asserted against the Indemnified Parties, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees) incurred by the Indemnified Parties arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your use of the Services, including, by way of example, any breach of applicable laws caused by your use of the Services, (iii) your unauthorized use of the CapSumo Script or other Services; (iv) any violation of any rights of third parties caused by your acts or omissions. In such instances, CapSumo will provide you with electronic and written notice of such third-party claim, action, proceeding, or suit to the last e-mail address and mailing address furnished to CapSumo within 30 days of learning of such claim. You shall cooperate as fully as reasonably required in the defense of any claim. CapSumo reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
8.1 Your Representations and Warranties.
The information, reports and services included in or available through the Services may include inaccuracies or typographical errors. Changes are periodically added to the information herein. CapSumo and/or its respective vendors may make improvements and/or changes in the Services at any time, without obligation to notify any person or entity of such changes.
The Services may contain links to third party websites (“Third Party Websites”). Access to Third Party Websites is at your own risk and CapSumo is not responsible for the accuracy, availability or reliability of any information, goods, data, opinions, advice or statements made available on Third Party Websites. The Third Party Websites are not under the control of CapSumo and as such, CapSumo is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Website. CapSumo provides these links merely as a convenience and the inclusion of such links does not imply an endorsement or recommendation.
CapSumo does not represent or warrant that (1) the Services will be error-free or accessible at particular times, (2) defects will be corrected, (3) the Services, or the server(s) that makes it available, are free of viruses or other harmful components, or (4) the use or the results of the use of the Services or the materials made available as part of the Services, including any reports, will be correct, accurate, timely, or otherwise reliable. You specifically agree that CapSumo shall not be responsible for unauthorized access to or alteration of your data.
THE SERVICES, THE CAPSUMO SCRIPT, THE CAPSUMO TECHNOLOGY, AND ANY REPORTS DERIVED THEREFROM ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY CAPSUMO EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, THE CAPSUMO SCRIPT, THE REPORTS, OR ANY DOCUMENTATION, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. CAPSUMO DOES NOT WARRANT THAT THE SERVICES, THE CAPSUMO SCRIPT, THE CAPSUMO TECHNOLOGY, OR ANY REPORTS DERIVED THEREFROM WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU IN FULL.
9. SERVICES FAILURES
CapSumo does not guarantee, and shall have no liability for, any Services downtime, including, without limitation, any downtime (i) caused by outages to any public Internet backbones, networks or servers; (ii) caused by any failures of your equipment, systems or local access services; (iii) for previously scheduled maintenance; or (iv) relating to events beyond CapSumo’s control, such as strikes, riots, insurrections, fires, floods, explosions, war, governmental actions, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where CapSumo or your servers are located or co-located.
10. LIMITATIONS OF LIABILITY
NEITHER CAPSUMO, NOR OUR PARTNERS, AFFILIATES, LICENSORS, AND THEIR RESPECTIVE INDEPENDENT CONTRACTORS, SERVICE PROVIDERS, CONSULTANTS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS WILL BE LIABLE TO YOU OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY CLIENT VISITORS, FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICES), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF SUCH PERSONS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN FULL
YOU AGREE THAT THE CUMULATIVE LIABILITY OF CAPSUMO, ITS AFFILIATES, LICENSORS, AND THEIR RESPECTIVE INDEPENDENT CONTRACTORS, SERVICE PROVIDERS, CONSULTANTS, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS TO YOU OR ANY OTHER PARTY, INCLUDING, WITHOUT LIMITATION, ANY CLIENT VISITORS, FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID TO CAPSUMO, IF ANY, FOR USE OF THE SERVICES DURING THE MONTH PRECEDING THE MOST RECENT EVENT GIVING RISE TO SUCH LIABILITY.
The foregoing limitations of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction.
11. INTERNATIONAL USE
Recognizing the global nature of the Internet and the rapid changes around online privacy, you agree to comply with all local rules regarding online conduct and acceptable content. Without limiting the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside and to comply with any other local laws affecting the Services. Further, use of the Services for Client Sites in certain jurisdictions outside of the U.S. may be conditioned upon your entry into a separate addendum governing the use of the Services for Client Sites in those jurisdictions (each, a “Foreign Addendum” and collectively, the Foreign Addenda”). You agree and acknowledge that CapSumo may condition your use of any of the Services or any Client Sites outside of the United States on entry into a Foreign Addendum which may be provided separately by CapSumo. CapSumo Service is not intended for use for all individuals within the European Union (EU) and the European Economic Area (EEA).
Site Not for use in the EU
The nature of our business means that the Personal Data collected through our website and services will be transferred to the United States. Information we maintain is stored within the United States. If you live outside of the United States, you understand and agree that we may transfer your information to the United States. If you are a resident of the EU, you may not use this site. This site is subject to U.S. laws, which may not afford the same level of protection as those in your country. Also, the CapSumo personnel and the third-parties to whom we disclose Personal Data are located in the United States. We have not adopted policies that comply specifically with the EU General Data Protection Regulation (GDPR).
12. TERM AND TERMINATION
12.1 In General
CapSumo may terminate or suspend access to the Services immediately, without prior notice or liability, if you breach this Agreement or for any other reason.
12.2 Termination of Data Collection Services
Either party may terminate the Data Collection Services at any time and for any reason. To terminate your use of the Data Collection Service, please follow the steps described in Section 3.6 (Account Cancellation). Requests to cancel by e-mail or phone are not considered, and do not accomplish, cancellation.
Upon any termination of the Data Collection Services (i) CapSumo will cease providing the Data Collection Service; (ii) you will delete all copies of the CapSumo Script from your web page(s); (iii) any outstanding balance payable by you to CapSumo will become immediately due and payable and any collection expenses incurred will be included in the amount owed; (iv) you will not be entitled to any refunds of any usage fees or any other fees; and (v) all of your historical report data will no longer be available to you through CapSumo.
In addition, upon expiration of any Session with respect to a web page, you shall delete all copies of the CapSumo Script from such web page. You understand and acknowledge that, unless and until the CapSumo Script is deleted from a web page, the CapSumo Script may continue to track information on such web page on an automated basis.
13. MODIFICATIONS TO THIS AGREEMENT AND OTHER POLICIES
Our employees are not authorized to vary the terms of this Agreement. This Agreement may be modified only (i) by obtaining our written consent in a notarized agreement signed by an officer of CapSumo; or (ii) as set forth below in the immediately following paragraph.
You agree that CapSumo may modify the terms of this Agreement or any policy governing the Services from time to time, and that your right to access the Services is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. We will notify you of any material revisions or modifications to the Agreement by posting a notice on the CapSumo Website for 30 days following any revisions or modifications to this Agreement and/or by posting a notice on the CapSumo Website the first time that you visit the CapSumo Website following such revisions or modifications. You will be deemed to have agreed to the new terms and conditions if you continue to access the Services after the passage of 30 days from the time the revised terms and conditions are first posted on the CapSumo Website. We assume no responsibility for your failure to actually receive notice. You are responsible for regularly reviewing the CapSumo Website for revisions to this Agreement.
You will not use the Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity.
15. ARBITRATION; DISPUTE RESOLUTION
YOU AND CAPSUMO UNDERSTAND AND AGREE THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND CAPSUMO, ITS PARENTS, AFFILIATES, SUBSIDIARIES OR RELATED COMPANIES (INCLUDING DISPUTES AGAINST ANY AGENT, EMPLOYEE, SUBSIDIARY, AFFILIATE, PREDECESSOR IN INTEREST, SUCCESSOR, OR ASSIGN OF THE OTHER) RELATING TO THE SITE, THE INFORMATION AND MATERIALS PUBLISHED BY CAPSUMO ON OR THROUGH THE SITE, ANY TRANSACTION OR RELATIONSHIP BETWEEN US RESULTING FROM YOUR USE OF THE SITE, COMMUNICATIONS BETWEEN US, AND YOUR USE OF OUR SERVICES, INCLUDING, WITHOUT LIMITATION, TORT AND CONTRACT CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET BELOW. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY SUCH CLAIMS SHALL BE BROUGHT SOLELY IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY A COLORADO STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY, CONSTRUED, AND ENFORCED, BOTH PROCEDURALLY AND SUBSTANTIVELY, BY THE FEDERAL ARBITRATION ACT 9 U.S.C. § 1-9 (“FAA”), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THIS SECTION 15 (ARBITRATION; DISPUTE RESOLUTION) SHALL SURVIVE TERMINATION OF THE SERVICES OR OF THESE TERMS AND CONDITIONS TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS.
The following procedures shall apply:
- Any party that intends to make a claim shall first notify the opposing party in writing of such intention and shall describe in such notice, with reasonable particularity, the nature and basis of such claim, and the total amount of the claim. Within thirty (30) days of receipt of such notice, the party receiving notice of a claim shall provide a written response which, with reasonable particularity, sets forth its position concerning the claim. If the parties are unable to resolve the dispute arising from the claim by good faith negotiations to be conducted within the thirty (30)-day period following the written response, either of them may initiate binding arbitration pursuant to the terms and conditions set forth herein.
- In the event a party elects to proceed with binding arbitration, it shall provide written notice thereof to the other party by registered or certified mail. The arbitration shall be conducted by the American Arbitration Association (“AAA”), and shall be conducted using the then current Commercial Arbitration Rules of the AAA (except as varied by this agreement). The arbitration shall take place in Douglas County, Colorado, but may proceed telephonically in the event the total amount of the claim does not exceed $10,000 U.S. dollars (if the claimant so chooses).
- Payment of all filing, administration, and arbitrator fees will be governed by AAA’s rules.
- If for any reason the AAA is unavailable, the parties shall select JAMS.
BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING YOUR RIGHT TO A JURY TRIAL. In arbitration, a dispute is resolved by a neutral arbitrator or panel of arbitrators, rather than by a judge or jury. Arbitration is more informal than a court trial; however, an arbitrator can award the same relief that a court can award.
Separate and apart from the agreement to arbitrate set forth above, the parties hereby independently waive any right to bring or participate in any class action in any way related to, or arising from, this agreement. You acknowledge that this class action waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from the agreement to arbitrate claims. If any portion of this class action waiver is limited, voided, or cannot be enforced, then the parties’ agreement to arbitrate shall be null and void. YOU UNDERSTAND THAT BY AGREEING TO THIS ARBITRATION AGREEMENT, WHICH CONTAINS THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST CAPSUMO, ITS AGENTS, OFFICERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND/OR ASSIGNS IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. IF YOU DO NOT AGREE TO THIS ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, YOU MUST TELL US IN WRITING AND NOT USE OUR SITE OR SERVICES.
16. MISCELLANEOUS; APPLICABLE LAW AND VENUE
CapSumo shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
This Agreement (including any amendment thereto) represents the complete agreement between us concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to reflect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
16.3 Choice of Law and Forum
This Agreement shall be governed by and construed under the laws of the state of Colorado, U.S.A., without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and Colorado law, rules, and regulations, Colorado law, rules and regulations shall prevail and govern. Except to the extent that arbitration is required in accordance with Section 15 (Arbitration; Dispute Resolution) above, any action or proceeding relating to a Dispute may only be instituted in state or federal court in Douglas County, Colorado. Accordingly, each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Douglas County, Colorado. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The CapSumo Script and CapSumo Technology are controlled by U.S. Export Regulations, and may not be exported to or used by embargoed countries or individuals.
When you visit the Website or send emails to us, you communicate with us electronically and consent to receive communications from us electronically. We may communicate with you by: (a) email to your email address indicated in your communications with us, (b) posting general notices on Our Website, or (c) posting messages that are displayed to you when you log in to or access Our Website. CapSumo may deliver notice to you under this Agreement by means of electronic mail, a general or specific notice on the Services, a communication to your CapSumo account or by written communication delivered by first class U.S. mail to your address on record. You agree that all agreements, notices, disclosures and other communications that We provide to you electronically satisfy any legal requirement that such communications be in writing.
Any notices to CapSumo must be sent to:
CapSumo, Inc. 9545 La Costa Lane, Lone Tree, CO 80124
via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default.
16.5 Transfer of Rights
You may not assign or otherwise transfer any of your rights hereunder without CapSumo’s prior written consent, and any such attempt is void. The relationship between CapSumo and you is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control of affect the meaning or construction of any provision of this Agreement.
16.7 Entire Agreement
If any provision of these Terms and Conditions is found to be void or unenforceable, then the remainder will have full force and effect, and the invalid provision will be partially enforced to the maximum extent permitted by law to effectuate the purpose of these Terms and Conditions