Terms-of-Use for End-Users
Last Updated: April 6, 2020
These Terms of Service (“Terms”) govern your access to and use of the software and services provided by Captivated, LLC (“Captivated,” “we,” “us,” or “our”) as described in the order form entered into by “your” company or organization (“Licensee”) and Captivated, including any online order placed by you through Captivated’s website (“Order Form”). “You” or “your” means the customer identified on the Order Form.
1.Scope; Definitions. Subject to your compliance with these Terms, Captivated will provide to you the software applications and related services described in the Order Form (together, “Services”). “Services” includes the Software, the Documentation, the Support Services, and the Professional Services (each as defined below). “Software” means the software applications described in the Order Form, any upgrades, updates, and other changes and modifications to those software applications, and includes, for the avoidance of doubt, any related mobile applications, administrative websites, website widgets, and application protocol interfaces (“APIs”) made available by Captivated. Captivated reserves the right, in its sole discretion, to enhance, improve, update, and otherwise modify the Software at any time. “Documentation” means any documentation related to the Software that Captivated may make available to you.
2.License Grant. Captivated hereby grants to you a nonexclusive, revocable (as permitted by these Terms), nontransferable, nonassignable, nonsublicensable, limited license to, for the duration of the term of the Order Form, (a) access and use the Software solely for your internal business purposes, (b) download and install any APIs solely for your internal business purposes, and (c) use and make a reasonable number of copies of the Documentation for your authorized employees and contractors solely for your internal business purposes.
3.Software Access. You will limit access to the Software and Documentation to your employees and contractors who both need to access the Software for purposes of their work for you and are bound by use restrictions and confidentiality obligations no less restrictive than those contained in these Terms. You will ensure that each such employee and contractor agree to any end-user terms contained in or on our mobile applications prior to using those mobile applications. If any provision of those end-user terms conflicts or is inconsistent with any provision of these Terms, these Terms will control. You are responsible for all access to and use of the Software and Documentation by your employees, contractors, and all other persons whom you permit to use the Software. You are responsible for maintaining the confidentiality of any usernames, passwords, and other log-in credentials used to access or use the Software, including those assigned by Captivated. You will promptly notify Captivated of any unauthorized access to or use of the Software or Documentation of which you become aware.
4.Software Use Restrictions. You will not, and you will direct your employees and contractors not to: (a) copy, reproduce, sell, license, rent, reconfigure, reverse-engineer, disassemble, decompile, translate, adapt, discover the source code of, prepare any derivative works of, update, combine with other computer code, or otherwise modify the Software, the Documentation, or any part thereof; (b) obscure, remove, or alter any proprietary markings, designations, or notices in or on the Software or the Documentation; (c) develop, assist in developing, or have developed on your own or any other person’s behalf software or services that compete with or are substantially similar to the Services; (d) use the Software or Documentation for unlawful purposes; (e) send any unsolicited messages, chain letters, spam, or junk mail using the Software; (f) impersonate or attempt to impersonate another person or business while using the Software; (g) provide inaccurate information via the Software (including misrepresenting your products or services to text message recipients); (h) commit fraud or falsify information in connection with your use of the Software; or (i) use the Software to transmit any material that contains any viruses, Trojan horses, worms, time bombs, cancelbots, malware, adware, or other harmful computer code or programming routines.
5.Responsibility for Text Messages and Other User-Generated Content.
A. You acknowledge and agree that Captivated is not responsible for any text messages (including their contents) sent or received using the Software, including any messages received by unintended recipients (“Text Messages”), or for any other data, information, text, images, video, audio, messages, or other materials that are provided, transmitted, uploaded, distributed, or made available in the course of your use of the Services (together, including Text Messages, “User-Generated Content”). You are responsible for all User-Generated Content and for the legality, originality, and appropriateness thereof. You acknowledge that User-Generated Content is neither generated nor controlled by Captivated. User-Generated Content is not monitored. Captivated reserves the right, but does not have the obligation, to review, prescreen, modify, and delete User-Generated Content at any time at its sole discretion. Captivated has no obligation to archive or otherwise store any User-Generated Content. You grant Captivated a perpetual, irrevocable, transferable, assignable, sublicensable, royalty-free, fully paid-up, worldwide license to copy, modify, adapt, reformat, translate, prepare derivative works of, store, publish, perform, display, and otherwise use and distribute any User-Generated Content provided by you or on your behalf for purposes of providing the Services.
B.You acknowledge and agree that Text Messages are subject to the Telephone Consumer Protection Act and the regulations promulgated thereunder (together, the “TCPA”), as well as other federal statutes and regulations and state laws and regulations, and that Text Messages sent from or received by telephones in countries outside the United States may be subject to foreign laws. By sending Text Messages you warrant that you have all rights, permissions, and consents necessary to send those Text Messages, including any required by the TCPA, and to provide to us all other User-Generated Content. You agree not to claim that any use of that User-Generated Content by us or any third party infringes or violates your or any other person’s intellectual property rights, rights of privacy, rights of publicity, or other rights.
C. You will inform your employees and contractors who are authorized to use the Software that Text Messages can be monitored by your administrative users. You acknowledge and agree that Text Messages are transmitted in an unencrypted format and that therefore Captivated cannot guarantee that Text Messages or any other communications sent or received using the Software will be completely secure. You will not, and you will direct your employees and contractors not to, send or attempt to send any Text Message that is defamatory, indecent, pornographic, obscene, or otherwise objectionable. Solely you are responsible for any liability or obligations resulting from the input or submission of personally identifiable information in the course of using the Software. You acknowledge and agree that Captivated may, pursuant to a subpoena, summons, search warrant, governmental order, or other lawful processes, make Text Messages available to third parties.
D. You will inform your employees and contractors who are authorized to use this software, that all conversations that are of private nature (Medical and Financial) should be conducted using the features, Invite to chat or Invite to Video Chat that is encrypted point-to-point and does not remain on your contacts phone as a text message. They are optional features that are licensed separately from Captivated.
E. If you are a Licensee of our Face-to-Face technology, for the purposes of video chat, you must act and engage in a manner that is professional and courteous while on video with contacts. You shall not use language or gestures that are intended to harm, threaten, or demean the contact you are chatting with. You understand using such actions can result in a ban from this video platform. When using the system, you will be dressed in such a way that it would be consistent with being present at your company’s workplace. You shall not use this service while driving or operating other heavy machinery, and you understand that all risks, injury, and harm associated with doing so are NOT the responsibility of your company, the “Licensee” or Captivated, LLC.
6.Inherent Limitations on Text Messaging. You acknowledge and agree that the transmission of Text Messages is subject to the availability and performance of telecommunications providers and networks, as well as recipients’ devices, that those networks, providers, and devices are wholly outside of Captivated’s control, that Text Message transmission time may vary, and that transmission is subject to limited message lengths. You acknowledge and agree that the Software can only be used to send Text Messages to and receive Text Messages from telecommunications providers with which Captivated has partnered and to the extent allowed by Captivated’s agreements with those providers. You acknowledge and agree that telecommunications providers may prevent their subscribers from receiving Text Messages and that subscribers themselves may block telephone numbers, in which case Text Messages cannot be received by those subscribers, and that Captivated has no responsibility for the practices or policies of any telecommunications providers. You acknowledge and agree that the Software is not designed to handle bulk text messaging and that the performance and quality of the Software may be degraded due to capacity and technical constraints imposed by telecommunications providers and networks or by the Software itself.
7.Support Services; Service Levels. Captivated will, at no additional cost to you, provide remote technical support for the Software via chat and text message during Captivated’s normal business hours (“Support Services”). Requests for Support Services must be sent through the Captivated Support Chat button within the Captivated application or emailed to firstname.lastname@example.org within seven business days after you become aware of the relevant issue and must contain a description of the issue. You will cooperate with Captivated in Captivated’s performance of the Support Services, including by providing Captivated with data, equipment, information, personnel access, and other assistance and materials as Captivated may reasonably request. Captivated is not responsible for providing Support Services if: (a) you use the Software in combination with any hardware or software not authorized by Captivated in writing or by the Documentation; (b) you use the Software with web browsers other than those recommended by Captivated; (c) you use the Software except in accordance with these Terms; (d) you use any release or version of the Software other than the most current release or version; or (e) the request or need for Support Services results from (i) you or your employees’ or contractors’ misuse, negligence, willful misconduct, noncompliance with regulations, violations of law, or breach of these Terms, (ii) Captivated’s compliance with your instructions, or (iii) a force majeure event (as contemplated below). Additionally and notwithstanding anything to the contrary in these Terms, you acknowledge and agree that Captivated is not responsible for providing any maintenance or support services for any of your computers, other hardware, operating systems, databases, telephone lines or equipment, web browsers, websites, Internet, or wireless networks, nor for any software not licensed by you directly from Captivated (together, “Customer Systems”). Captivated will use commercially reasonable efforts to make the Software available for access and use by you in accordance with these Terms, excluding any unavailability that results from routine maintenance, emergency maintenance, or any item described in clauses (a) through (e), above. Captivated will use commercially reasonable efforts to give you prior notice of any routine maintenance that may result in downtime.
8.Professional Services. Captivated will perform all installation, configuration, setup, training, and other professional services as may be described in the Order Form (together, “Professional Services”). Notwithstanding anything to the contrary in the Order Form, you acknowledge and agree that Captivated is not obligated to provide any professional services with respect to Customer Systems. Captivated may engage third-party contractors to provide Professional Services.
9.Your Obligations. Solely you are responsible for providing, setting up, maintaining, and operating your information technology infrastructure, including Customer Systems, as necessary to access and use the Services, whether that infrastructure is operated directly by you or through the use of third parties sourced by you. You will assign personnel with relevant training and experience to work in consultation with Captivated. You will provide all cooperation and resources as Captivated may reasonably request to enable Captivated to perform its obligations and exercise its rights under these Terms and as may be required by the Order Form. Captivated is not liable for any delay or failure of performance to the extent caused by your delay in performing or failure to perform any of your obligations under these Terms or the Order Form.
10. Fees; Expenses. Fees for the Services are as stated in the Order Form (“Fees”). Unless otherwise expressly stated on the Order Form, recurring monthly subscription fees are due monthly in advance and one-time Fees are due on the date of the Order Form. Metered Fees for additional messages or minutes or SMS lookups will appear on your following month’s invoice. For any Fees invoiced, you will pay those Fees to Captivated within 10 days of the date of the invoice. Fees are exclusive of any applicable sales taxes and similar charges. You are currently responsible for any taxes and similar charges imposed as a direct result of the Services, excluding any taxes on Captivated’s net income. If at such a point in time, Captivated is required to collect tax on your subscription, you agree to pay the taxes based on your local tax jurisdiction. You will reimburse Captivated the cost, without mark-up, of Captivated’s reasonable out-of-pocket expenses incurred during and in furtherance of the performance of any Professional Services, including all travel and accommodation expenses. Captivated will provide documentation of those expenses to you upon your reasonable written request. Any amounts not paid when due will bear late charges equal to the rate of 1.0% per month or the maximum rate permitted by applicable law, whichever is less. All Fees are nonrefundable.
11. Term; Termination.
A.Term; Renewal. The Order Form commences on the date thereof and continues until terminated in accordance with these Terms. The initial term of the Order Form is one month commencing on the date of the Order Form. That initial term will automatically renew for successive one-month periods unless either party provides the other party with at least 30 days’ prior written notice of nonrenewal. Captivated may increase the Fees for any Services effective upon any renewal term by providing you with written notice at least 120 days’ prior to the commencement of that renewal term.
B.Termination for Cause. Either party may terminate the Order Form for the other party’s material breach of these Terms, provided the terminating party provides the breaching party with at least 30 days’ prior written notice. The breaching party will have 30 days from the date of receipt of the termination notice to cure the breach. Upon any termination by Captivated under this subsection, you will promptly pay Captivated all outstanding Fees and other amounts due under the Order Form.
C.Obligations Upon Termination. Upon any non-renewal or other termination of the Order Form, you and your employees and contractors will immediately cease all access to and use of the Software and Documentation, including removing any Captivated-provided widgets from your websites, and you will promptly destroy all of Captivated’s Confidential Information in its possession. Sections 5, 6, 10 (as applicable), 11 (as applicable), 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 25, 26, and 27 survive any termination of these Terms.
12. Intellectual Property Rights. Captivated and its suppliers and licensors, as applicable, are the exclusive owners of all right, title, and interest in and to the Software, all Documentation and materials, and all ideas, concepts, know-how, methodologies, and techniques related to the same, including all patent, copyright, trademark, trade secret, and other intellectual property rights, whether developed by or on behalf of Captivated prior to or during the term of the Order Form. Captivated will be free to use any general knowledge, experience, skills, ideas, concepts, techniques, and know-how that are retained in the memory of Captivated’s personnel in connection with these Terms or the Services. Captivated is the exclusive owner of and you hereby irrevocably assign to Captivated all right, title, and interest (including all intellectual property rights) in and to all feedback pertaining to the Services as may be provided by you or your employees or contractors, including suggestions, enhancements, recommendations, and other comments. You understand that feedback may be used by or on behalf of Captivated for any purpose but that under no circumstances is Captivated required to use any feedback. Except as expressly stated in these Terms, no licenses or other rights, express or implied, are granted by Captivated to you under any patent, copyright, trademark, trade secret, or other intellectual property rights of Captivated. The Software may contain references to third-party trademarks and copies of third-party copyrighted materials, which are the property of their respective owners.
13. Copyright Policy. We respect the intellectual property rights of others and we ask that our users do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”), located at 17 U.S.C. § 512, and other applicable laws, we strive to expeditiously remove any infringing material from the Services if we become aware of the same. If you believe that anything on the Services infringes any copyright that you own or control, please provide our designated agent with a notice that contains the following information: (a) a description of the copyrighted work(s) that you claim have been infringed; (b) a description of the allegedly infringing material, including its location on the Software; (c) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (c) your email address, telephone number, and mailing address; (d) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf; and (e) an electronic or physical signature of a person authorized to act on behalf of the copyright owner. Your notice must meet the then-current requirements implemented by the DMCA. Contact information for our designated agent for notice of claims of copyright infringement is as follows:
5875 Castle Creek Pkwy Dr. N., Suite 260, Indianapolis, Indiana 46250
317-316-3188 (telephone), email@example.com.
14. Use of Marks. Neither party may, without the other party’s prior written consent, use the names, logos, or trademarks of the other party, except that you may identify Captivated as a vendor and Captivated may identify you as customer in its marketing materials and on its customer lists.
15. Service Data. “Service Data” means all data that is entered into, submitted to, or uploaded to the Software by you or on your behalf or otherwise collected by the Software in the course of your use of the Software, including all Text Messages and all data regarding your access to or use of the Software (e.g., performance statistics and usage data), as well as all reports and materials generated by the Software containing, based on, or reflecting any of that data. Captivated may copy, modify, prepare derivative works of, distribute, commercially exploit, and otherwise use Service Data in any manner for its business purposes, provided that Captivated will not use Service Data in a way that allows you, your customers, or any other individual to be identified by any third party.
17. Confidentiality. “Confidential Information” means all information disclosed in connection with the Services or these Terms by or on behalf of Captivated to you, or otherwise obtained by you, whether or not identified as “confidential,” that Captivated considers or protects as confidential and that should reasonably be understood to be confidential given the content of the information and the circumstances of disclosure, including the Software; all Documentation; the contents of the Order Form and these Terms; marketing, advertising, distribution, and sales practices; financial information; customer and vendor lists and information; strategies, tactics, and business plans; business models; policies, methods, and processes; technical specifications; software applications; computer code; technology; know-how; ideas; trade secrets; algorithms; and data. Confidential Information may be in any form and includes all copies of Confidential Information. Confidential Information is solely the property of Captivated. You may not use Confidential Information for any purpose except as necessary to perform your obligations or exercise your rights under these Terms. You may not disclose Confidential Information except to your employees and contractors who have a need to know for purposes of performing your obligations or exercising your rights under these Terms, provided those individuals are bound by confidentiality obligations as least as stringent as those contained in this section. You will use the same measures to protect Confidential Information from unauthorized use and disclosure as you use to protect your own most confidential information but in no event less than a reasonable degree of care. You will be responsible for any breaches of this section by your employees and contractors. If a third party requests that you disclose any Confidential Information pursuant to a subpoena, summons, search warrant, governmental order, or other lawful processes, you will provide prior written notice to Captivated of the disclosure as to afford Captivated the opportunity to resist the release of Confidential Information and you will release only that Confidential Information that your legal counsel advises is required to be disclosed in order to comply with the request.
18. Warranties; Disclaimer.
A.Mutual Warranties. Each party warrants that it has the authority to enter into these Terms and to perform its obligations under these Terms and that it is under no contractual obligation that will interfere with its ability to satisfy its obligations under these Terms.
B.Your Warranties. You warrant that the Services will not be accessed or used in any manner not permitted by these Terms, that you will perform your obligations and exercise your rights under these Terms in compliance with all applicable laws and regulations (including any applicable export or import laws or regulations), and that no Text Message will cause Captivated to violate any law or regulation.
C.Disclaimer of Warranties. To the maximum extent permitted by applicable law, the Services are provided on an “as is” and “as available” basis, without warranties of any kind. To the maximum extent permitted by applicable law, Captivated disclaims all warranties, express, implied, statutory, and otherwise, with regards to the Services, including without limitation the warranties of merchantability, fitness for a particular purpose, title, and noninfringement, and any warranties arising from a course of dealing or usage in trade. Captivated does not warrant that the Services will be free of error, viruses, or other harmful components, or that any defects will be corrected. Captivated does not guarantee the quality, accuracy, or availability of the Services. Captivated has no responsibility for the timeliness, deletion, misdelivery, or failure to store any Text Message or other user communication. Captivated makes no warranty that the Services will ensure your or any other person’s compliance with any regulatory programs or applicable laws or regulations. You acknowledge and agree that the Services may be subject to limitations, delays, and other problems inherent in the use of telecommunications, the Internet, wireless networks, and electronic communications. Captivated is not responsible for any delays, inaccuracies, delivery failures, or other failures or damage resulting from those problems or any other problems outside of Captivated’s reasonable and direct control, including without limitation telecommunications services, the Internet, your wireless networks, and any third-party software. We make no representation that the Services are appropriate or available for use in locations other than the United States. If you choose to access the Services from locations other than the United States, you do so at your own risk and you are responsible for complying with applicable laws and regulations. No advice or information, oral or written, obtained by you from Captivated or in any manner from the Services creates any warranty.
19. Indemnification. You will indemnify, defend, and hold harmless Captivated, its affiliates, and its and their respective directors, officers, owners, employees, contractors, representatives, consultants, agents, suppliers, and licensors (together, “Captivated Parties”) from and against all claims, complaints, actions, lawsuits, demands, proceedings, losses, liabilities, damages, judgments, settlements, fees, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with (a) your or your employees’ or contractors’ gross negligence, willful misconduct, or other tortious acts or omissions; (b) misuse of the Services by you or your employees or contractors; (c) use of the Services for unlawful purposes; or (d) any noncompliance with regulations or violations of law.
20. Limitation of Liability. to the maximum extent permitted by applicable law, in no event will the Captivated Parties be liable for any direct, indirect, special, incidental, exemplary, punitive, or consequential loss or damage, or any other loss or damage of any kind, arising out of or in connection with the Services, including your access to or use of, or inability to access or use, the Software, whether the claim is based in contract, tort (including negligence), strict liability, warranty, or otherwise, and even if a Captivated Party has express knowledge of the possibility of the loss or damage. Your sole and exclusive remedy is to stop accessing and using the Services. Without limiting the foregoing, in no event will Captivated Parties’ liability to you exceed the amount of Fees paid by you under the Order Form during the one-month period immediately preceding the event that gave rise to the liability, even if this remedy fails of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of certain damages, so some of the above exclusions and limitations may not apply to you.
21. Force Majeure. Except for your payment obligations, neither party will be liable for failure or delay in performing any obligation under these Terms due to circumstances beyond its reasonable control that prevent it from performing its obligations, including without limitation acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances, or terrorism, and power, communications, satellite, or network failures.
22. Audit; Suspension. Upon reasonable prior written notice and in a manner that does not unreasonably disrupt your day-to-day operations, Captivated and its designated representatives may audit, examine, and make copies of data and other information in your possession or control that relate to or concern your compliance with these Terms. Additionally, Captivated may remotely monitor your use of the Software for purposes of evaluating your compliance with these Terms. Captivated may immediately suspend your access to the Software if Captivated reasonably suspects a material breach of these Terms or if any Fees remain unpaid for more than 30 days following any due date. Captivated will use commercially reasonable efforts to notify you prior to any suspension.
23. Injunctive Relief. Your breach of Sections 3, 4, 5, 12, or 17 would cause irreparable harm to Captivated and monetary damages would be insufficient to remedy that harm. Accordingly, in the event of an actual or threatened breach of any of those sections, Captivated will be entitled to injunctive relief, without the need to post bond, prove damages, or meet any similar requirement, as well as any other remedies available at law or at equity.
24. Relationship of the Parties. Captivated is an independent contractor. These Terms do not create any employment, agency, partnership, or joint venture relationship between the parties. Neither party has any authority to contract for or bind the other in any manner or make any representation or commitment on behalf of the other.
25. Notice. All notices, consents, and other communications permitted or required to be given under these Terms must be in writing and addressed to the recipient’s address set forth in this section or such other address as the recipient provides in accordance with this section and will be deemed validly given upon delivery if personally delivered with fees prepaid, including by a recognized courier service; upon receipt, if delivered by certified or registered United States mail, postage prepaid and return receipt requested, as indicated by the date on the signed receipt; or on the date the email is sent if via email, provided a hard copy is also provided. Where Captivated is the recipient, communications must be sent to 5875 Castle Creek Pkwy Dr. N., STE 260, Indianapolis, IN 46250, with a copy to firstname.lastname@example.org. Where you are the recipient, communications must be sent to the address on file with Captivated.
26. Governing Law. These Terms are governed by the laws of the state of Indiana, without regard for its conflict of law principles. The Uniform Computer Information Transactions Act or any version thereof adopted by any state in any form does not apply to these Terms. The United Nations Convention for the International Sale of Goods does not apply. The venue is exclusively in the state or federal courts, as applicable, located in Hamilton County, Indiana, with respect to any dispute arising under these Terms.
28. Contact Us. Please direct any questions and concerns regarding these Terms to us by email at email@example.com, by text message or telephone at 317-316-3188, or by mail at the address above.