- These Terms
The Terms herein are a legally binding contract between you and Captira Analytical LLC (“Captira”, “Company”). If you access the Captira website or offerings in the course of your duties, broadly defined, then you are also binding your employer to these Terms.
This contract (“Terms”, or “Website Terms”) sets out your rights and responsibilities when you use Captira.com, its sub-domains, communications or its Services and Software (collectively the “website”, “software”, or “Services”), so please read it carefully. By accessing the website, you are legally agreeing to be bound to these Terms.
These Terms are in addition to any other terms included when you sign up for any Captira Software or Service product specific agreement.
You may not access this website or Captira’s Software and Services with the purposes of :
- Hacking, gaining access to, or impersonating, another user or person;
- To copy or scrape any information of any nature;
- To copy, attempt to copy, reverse engineer, replicate products, features or business models of, or understand Captira’s commercial offering for the purpose of replicating, attempted copying or otherwise deriving knowledge of Captira’s copyrighted or commercial offerings in a manner that was not intended by Captira or to compete, directly or indirectly, in any manner with Captira;
- If you are a direct competitor to Captira, or you reasonably intend to compete with Captira based on circumstances or intent, you may not use the software without Captira’s explicit, advance, written consent.
- Captira lays claim that the screen designs, layouts, products accessible to clients of Captira and the manner integrating third party services and all aspects and features of Captira’s website, Toolkit and all other Products and Services are proprietary, and we lay claim to copyright, unregistered or otherwise. Any accessing or reproduction (including but not limited to screenshots) of a Captira product or commercial offering, either directly or indirectly (via a client or otherwise) that results in attempted copying or replication of a software feature or commercial offering or causes harm, or potential harm, to the business of Captira in the opinion of Captira, will be a breach of these Terms. These provisions explicitly apply if attempted copying or replication is used by the person for internal use or providing such protected information under these Terms to a third party.
- Your Privacy
- Your Account with Captira
You must be 18 or older to use our Services. Otherwise, you may only use our Services under the supervision of a parent or legal guardian.
Be honest with us. Provide accurate information about yourself. It’s not OK to use false information or impersonate another person or company through your account.
Choose a nice username. A username that is offensive, vulgar, or infringes someone’s intellectual property rights violates the Terms.
You are responsible for your account. You’re solely responsible for any activity on your account. If you’re sharing an account with other people, then the person whose billing information is on the account will ultimately be responsible for all activity. If you’re registering as a business entity, you personally guarantee and warrant that you have the authority to agree to the Terms on behalf of the business. Also, your accounts are not transferable.
Protect your password. As we mentioned above, you’re solely responsible for any activity on your account, so it’s important to keep your account password secure.
Let's be clear about our relationship. These Terms don't create any agency, partnership, joint venture, employment or franchisee relationship between you and Captira.
- Software & Services
These Terms will apply when accessing both the website www.captira.com and all Software and Services even if, and in addition to, any other terms and agreement that may relate to a specific service registered, purchased or accessed by you (the “Product Use Terms). If there is any ambiguity, conflict or alternative clauses between these Terms or Product Use Terms, then the Company will determine in its sole discretions such clauses and or Terms or Product Use Terms as the case maybe to use and interpret in these circumstances.
- Your Use of Our Services
License to Use Our Services. We grant you a limited, non-exclusive, non-transferable and revocable license to use our Services—subject to the Terms and the following restrictions in particular:
- Don’t Use Our Services to Break the Law. You agree that you will not violate any laws in connection with your use of the Services. This includes any local, state, federal and international laws that may apply to you, including don’t commit fraud, theft or any other crimes against Captira, another Captira user or a third party.
- Pay Your Bills. You are responsible for paying all fees that you owe to Captira or vendors you access via the Captira Software and Services.
- Don’t Steal Our Stuff. You agree not to “crawl,” “scrape,” or “spider” any page of the Services or to reverse engineer or attempt to copy or obtain the source code of the Software or Services.
- Don’t Try to Harm Our Systems. You agree not to interfere with or try to disrupt our Services, for example by distributing a virus or other harmful computer code.
- The names “Captira” and derivations and the other Captira marks, phrases, logos and designs that we use in connection with our Software and Services, are trademarks, service marks or in copyright use of Captira. We reserve all copyright claims in our software, whether registered or unregistered, to the fullest extent provided by law.
- Share Your Ideas. We love your suggestions and ideas! They can help us improve your experience and our Services. Any unsolicited ideas or other materials you submit to Captira (not including Your Content or items you sell through our Services) are considered non-confidential and non-proprietary to you. You grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation.
- Discontinuation of Service
We may terminate or suspend your account (and any related accounts) and your access to the Services at any time, for any reason, and without advance notice. If we do so, it’s important to understand that you don’t have a contractual or legal right to continue to use our Software and Services. Captira reserves the right to change, suspend or discontinue any of the Services at any time, for any reason. We will not be liable to you for the effect that any changes to the Services may have on you. The Terms will remain in effect even after your access to the Service is terminated, or your use of the Service ends, whether by you or us terminating.
The Software and Services are provided “as-is” and no implicit or explicit warranty is provided in their use or access. You hereby release us from legal liability or recourse to the maximum permissible extent by law. If Captira gets sued because of something that you did, you agree to defend and indemnify us. That means you’ll defend Captira (including any of our employees) and hold us harmless from any legal claim or demand (including reasonable attorney’s fees) that arises from your actions, your use (or misuse) of our Services, your breach of the Terms or your account’s infringement of someone else’s rights. We reserve the right to handle our legal defense however we see fit, even if you are indemnifying us, in which case you agree to cooperate with us so we can execute our strategy.
Governing Law. The Terms are governed by the laws of the State of New York, in the jurisdiction of Albany NY without regard to its conflict of laws rules, and the laws of the United States of America.
Arbitration. You and Captira agree that any dispute or claim arising from or relating to the Terms shall be finally settled by arbitration, using the English language, administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules then in effect (those rules are deemed to be incorporated by reference into this section). Our arbitration will be handled by a sole arbitrator in accordance with those rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under the Terms will take place on an individual basis: class arbitrations and class actions are not permitted. You understand that by agreeing to the Terms, you and Captira are each waiving the right to trial by jury or to participate in a class action. Notwithstanding the foregoing, each party shall have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. This mandatory arbitration, the waiver of class actions and waiver of trial by jury is binding upon the Parties and shall survive any termination of your use of the Services or information we supply. The Service is designed for business clients and not consumers and the clients of the Service may or may not use components of their service to interact with their end customers which if they access the URL captira.com or sub-domains or sub-URLs, will be bound by these Terms but the Service business customers, and their customers, are not “consumers” for the purpose of the Service.
Forum. We’re based in Albany, New York, so any legal action against Captira related to our Software and Services, must be filed and take place in the seat of any arbitration and shall be Albany, NY. For any actions not subject to arbitration, you and Captira agree to submit to the personal jurisdiction of a state court located in Albany, New York or the nearest District Court applicable for Albany NY.
This clause 7 is subject to, and excludes jurisdiction and governing law covered by claims in respect of our accounts receivable management software whose jurisdiction is dealt with in the General Terms in respect of the Kernel Vendor.
- Changes to the Terms
We may update these Terms from time to time. Changes will be effective upon the posting of the changes. You are responsible for visiting these Terms pages, reviewing and becoming familiar with any changes. Your use of the website, Software and Services following the changes constitutes your acceptance of the updated Terms.
- Other Product Specific Agreements
The Terms, including all of the policies that make up the Terms, supersede our prior Terms, however you may enter into additional Captira product specific agreement or Product Use Terms. These Terms do not replace or supersede those other agreements, but these Terms are in addition to any other Captira product or service specific agreement. If any part of the Terms is found to be unenforceable, that part will be limited to the minimum extent necessary so that the Terms will otherwise remain in full force and effect. Our failure to enforce any part of the Terms is not a waiver of our right to later enforce that or any other part of the Terms. We may assign any of our rights and obligations under the Terms.
- Management Of Accounts Receivable Software
In addition to the Terms and Product Use Terms, if a user (including those who are, or alleged that they are, owed money, ie “Creditor”, or those who owe, or are alleged, to owe money ie “Debtor”) uses our software or access a webpage related to our debt account receivable management, then these additional terms apply:
10.1 The user hereby agrees and warrants that they are not a debt collection agency, nor do they collect monies for other parties, nor do they purchase debt in any manner. The system is ONLY to be used by original Creditors trying to manage bona fide outstanding amounts of the original debt arising from a direct Debtor of the Creditor due to normal business arrangements in the ordinary course of business.
10.2 A relationship between a Creditor and a Debtor is governed by requirements of law as are applicable and our software explicitly does not intermediate nor create any change in this original Creditor:Debtor direct relationship. The parties explicitly acknowledge that Captira is not a debt collector, nor a principal nor an agent of any party; we are a provider of software similar to Excel or Quickbooks. The Creditor is wholly responsible to operate their business and the software in the manner required by law e.g. Do Not Call list. A Debtor and Creditor going about their business holds Captira harmless and indemnifies Captira, to the fullest extent provided for in law, for any communication or act that arises from a Creditor : Debtor actual or alleged relationship. Captira is not responsible for any act or omission on the part of any user, Creditor or Debtor.
10.3 A Debtor acknowledges their only recourse to being contacted through system activity is to make contact via calling the Creditor directly.
10.4 No user, Creditor or Debtor will use or attempt to use the software in a manner other than intended ie that of being the follow up of a bona fide amount payable between two parties that is outstanding and due and payable, and use in accordance with these Terms.
10.5 These Terms are between Captira and you, the user, and these Terms explicitly do not create any rights and obligations between you and any other user.
10.6 As a user, you will abide by any laws and regulations covering your conduct, relationships and jurisdiction.
10.7 You acknowledge that Captira will make certain communications between users and herein (i) that these may reflect as been sent by the user (ie use of From email, use of logo’s, use of language with reference to the Creditor e.g. ‘us’) and (ii) that communications will be based upon user settings (e.g. discount levels, payment plan settings etc.) all of which you are solely responsible for (iii) you acknowledge such settings do not operate retro-actively nor hold Captira responsible or other users for timing changes between settings changes and communications; (iv) these are complex in nature and you will not hold Captira liable in any manner that arises from communications or relationships by and between a Creditor and a Debtor, alleged or otherwise. (v) direct Creditor : Debtor communications beyond that intended in the software are to be conducted via a call directly between Creditor and Debtor and not via the software or Captira support process and Captira is not party hereto in any manner whatsoever.
10.8 For the avoidance of doubt, references to ‘Carol’ in our software and communications is to what we call our digital assistant - it means ‘our software’ and is not a real person and no liability can attach to the digital assistant or the use of such nomenclature.
10.9 There is a software subscription plan and there maybe an additional fee charged if invoices meet certain criteria published on Captira’s pricing policy at the time. Once tracked in the system, such additional fee is payable if a Debtor pays the Creditor via a facilitated payment gateway or directly outside of our software. The Creditor undertakes to correctly and truthfully maintain records including but not limited to correct invoice dates and for payments received directory from Debtors.
10.10 Debtors pay Creditors directly, not Captira.
10.11 Any dispute by and between a Creditor and a Debtor, including amounts owed or communications of any kind, do not affect Captira and neither party can invoke Captira into such disputes. Captira reserves the right to charge any user an hourly based time and materials rate for any work above and beyond that of basic regular support and operation of the software.
10.12 Captira facilitates Creditors use of third party payment gateways and hereto we do not operate nor have any responsibility of this service, nor do we provide customer support hereto. Creditors and Debtors who make or receive payments facilitated by third party payment gateways, including Nuvei, in addition to our software do so at their own risk and hold Captira harmless in use of payment facilitation. Captira may receive a small commission of credit card processing fees of third party payment gateways that use our software. By clicking a consent button to the first payment in a payment plan or a schedule of payments plan, you authorize monies to be deducted from your authorized methods of payment in the future. During selected steps of a process or on selected System web pages or URL’s of the System, they may contain specific terms (“On Page Terms”) to the person that accesses that page which includes such On Page Terms that apply to that page and inter alia relationships either specifically or generally between parties and by using, clicking on or continuing to use the System, you agree to be bound by our On Page Terms.
10.13 In these Terms, and in the use of our software or communications sent, should there be any dispute as to an interpretation of any words, terms or intent, then users, Creditors and Debtors subject themselves that the interpretation shall not be from that of a reader thereof but solely as determined by the drafter of such content (ie Captira).
10.14 Communications and process webpages of the software from time to time include their own specific conditions (for example Discounts apply to immediate full payment and not to payment plans; Counter offers accepted are to be settled immediately and Creditors certain revocable rights) that bind users. These are tracked by Captira, are subject to clause 10.4 and explicitly form part of these Terms by definition.
10.15 Captira communication software has a kernel engine provided iLed (Pty) Ltd (“Kernel Vendor”), an international vendor, and user agrees without reservation that (i) Kernel Vendor will be held harmless by the same protections the user affords Captira under these Terms as if Kernel Vendor was Captira in these Terms (for the avoidance of doubt, user has no liability claim of whatsoever nature against Kernel Vendor for use of the Captira software); and (ii) Captira has the right to assign any claim, whether individual or in class, relating to any use of the Software including but not limited to communication sent/received by a user, to the Kernel Vendor; and user/s hereby bind themselves to agree to respect such assignment or claim transfer without reservation and only proceed in a claim against Kernel Vendor and not Captira in any manner; and the user hereto will make such claim against Kernel Vendor in, and subject to the laws, of the legal jurisdiction of the registered corporate offices of the Kernel Vendor only.
10.16 By choosing to add or upload your data or input containing sensitive and confidential data to our software you are agreeing to indemnify Captira Analytical LLC and its principals for any claim in respect of events arising from this and subsequent action. Furthermore, the information on this software or site is intended only for the use of the user as designated for accessing information and is to be used for lawful purposes only. Any unlawful use or disclosure of this information may subject the offender to legal and civil action by the Captira or the regulatory authority. Information on this site may be privileged, confidential or exempt from disclosure under applicable law. If you are not the authorized user, Creditor or Debtor responsible for accessing information as intended, you are hereby notified that any dissemination, distribution or copying of any communication is strictly prohibited.
10.17 In the event of a dispute, Captira as a prevailing party is entitled to recover and be compensated from you (the non-prevailing party) all actual or reasonable costs including staff time, travel costs, court costs, attorneys fees, and all other related expenses incurred in such arbitration, litigation or dispute and Captira shall not be prevented from requesting the arbitrator or court for an order seeking punitive damages.
10.18 A user holds Captira and its employees, officers and stakeholders harmless, to the fullest extent provided by law.
The Service has the ability in certain products, the ability to add an electronic representation to a document (“Signing” or “signing”). In addition to the Terms and Product Use Terms, if a user (including a Captira business who is a customer, a system user through being added by a Captira business user or a third party who users the Service by virtue of a Captira user sending a third party a link to access the Service and accordingly becoming a user for the purpose of the Terms), then these additional terms apply:
11.1 The user hereby agrees and warrants that they :
11.1.1 will not send documents for signature unless that are for legally valid contract purposes and only to bona fide legal agreement counterparties who are reasonably expecting a document to be sent to them for signature and user enters the correct counterparty contact details for delivery and have the necessary counterparty approvals;
11.1.2 will not impersonate another person or entity and will be legally liable for costs, sanction and penalties for both impersonation and for disavowing signing when evidence reasonably shows the signing by a specific user and such disavowing subsequently proves reasonable incorrect. Access of the Service at a users personal contact detail, you are representing that you are who you say you are.
11.1.3 you will only enter into an agreement (and sign such agreement) if you have full knowledge of the agreement, including but not limited to language understanding, the terms used and once signed and entered into by yourself, you are bound to the agreement and waiver the right of a claim of entering into an agreement you did not understand when signing, to the fullest extent permissible by law;
11.1.4 by providing your electronic mark as evidence of signature you both agree to be legally bound by what you are signing, and you have full knowledge of, and without duress, voluntarily
11.1.5 you hereby agree that user and persons signing information (including but not limited to name, contact details, geo location data, signature used) will be tracked by the Service and all, or part thereof, can and may be auto included in the document tracking data itself attached to the document PDF which will be visible to other users, signers and potentially other parties, and you accept and approve hereof. Furthermore, the Service will distribute to various users the PDF which may or may not contain sensitive information in the agreement itself, including but not limited to further sensitive information included in any trail of signing information attached to a PDF, and users specifically understand and accept that this is not confidential and can and will be distributed by the Service to other users and to the fullest extent permissible by law, indemnifies and holds the Company/Service and other users harmless hereto.
11.1.6 absolve and indemnify the Company/Service of all and any actions or claims arising from using the Service, including but not limited to the act of signing by parties, to the fullest extent permissible by law and without limitation;
11.1.7 the user will only provide valid contact details (for example email or mobile number) where they can be contacted for signing and by accessing the document for signing through these contact channels, users take personal responsibility that the other users and the Company/Service are so indemnified and protected from claims that other parties rather than the user accessed the Service if their contact details were provided in good faith as their personal contact details.
11.1.8 understand that agreements, including signing and entering into agreements, has risk which is for the users account and the Company/Service bears no responsibility as to the nature, content, legality of, or suitability of parties who use the Service to sign any agreement.
11.1.9 that the Service has no responsibility of determining the actual identity of signers pursuant to signers receiving signing requests at their contact details and such warranties they signer may undertake in the process of signing.
11.1.10 will download and keep a secure copy outside of the Service and this includes any attached trail information in respect of the signing activity. The Service may or may not retain a copy of the agreement, whether initial or signed, but this is not a legal obligation of the Service to provide retention or future access to records. A user MUST download and retain a copy of the signed agreement and attached signing activity trail information immediately upon completion of signing and retain such download in a secure place outside of the Service. This applies during and/or after any termination of any relationship by any user and the Service of any kind.
11.2 The user hereby agrees and warrants that they will not :
11.2.1 themselves, directly or indirectly including any user they permit under their account, to use the Service to send spam or signing requests to any person to which they do not have a valid third party agreement in process and which they have already agreed with the third parties that they are to receive a signing request;
11.2.2 they will not sign if (i) they are not in the USA, (ii) if you do not have the legal capacity to enter into any agreement, (iii) are not the expected recipient of the request either by name or by erratum of contact details, (iv) if user does not fully understand the language, or detailed terms and meetings, of the agreement;
11.2.3 hold the Company/Service or any other user liable for events or consequences that arise from (i) time based delays, blocking or non-delivery either due to the Service or external vendors (for example email platforms, internet service providers, texting vendors, phone networks, spam filters) for any reason whatsoever, and (ii) legal agreement aspects based on individual state, industry or other localized or regional requirements;
11.2.4 edit or attempt to edit any aspect of the agreement or the signing trail attached to a PDF once signing is complete either through the Service or alternative PDF editing tools (for example photoshop). Furthermore, the user hereby acknowledges such post signing edit if not completed via the service signing process is both unlawful, illegal and the user acknowledges and hereby accepts that any edit may or may not be determined by the Service, in its sole discretion, by comparison to Service stored independent audit trail logins and documents and hereby provides the Service the right to examine and disclose information to such parties that the Service deems is appropriate, including but not limited to authenticity and/or document editing.
11.2.5 the Service shall provide as part of the process a signing trail attached to the PDF and has no obligation to, but has the right to, track and store signing trail information and in the first instance, users refer to the signing trail attached to signed documents. The Service auto creates the signing trail process to attach to the signed PDF but bears no obligation and no liability, directly or indirectly, with respect to the signing trail information which is provided by the Service on an “as is” without warranty basis.
11.3 The user hereby agrees and without limitation :
11.3.1 That the Company/Service is NOT acting as any parties agent (ie behalf of or representing) and that Company/Service is NOT a party to any agreement that is signed over the Service;
11.3.2 To the fullest extent possible in law, the Company/Service attaches no liability or obligation of any manner if a document is signed using the Service and the Service makes no claim or warranty of any nature in respect of the Service or signing using the Service.
- WARRANTIES AND DISCLAIMERS
12.1 User. You hereby represent and warrant to the Company that: (a) you have all requisite rights and authority to sign and use the sign component of the Service under this and additional Product term agreements and to grant all applicable rights herein; (b) the performance of your obligations under this Agreement will not violate, conflict with, or result in a default under any other agreement, including confidentiality agreements between you and third parties; (c) you are responsible for all use of signing associated with your account and associated users; (d) you are solely responsible for maintaining the confidentiality of your account names and password(s); (e) you agree to immediately notify us of any unauthorized use of your Account of which you become aware; (f) you agree that the Company will not be liable for any losses incurred as a result of a third party's use of your account, regardless of whether such use is with or without your knowledge and consent; (g) you will use the Service for lawful purposes only and subject to this Agreement; (h) you will not store, transmit, upload, or share content through the Service that contains viruses or any other computer code, files or programs that interrupt, impair, destroy or otherwise limit in any way the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network; (i) you will not use Service in any manner that could damage, disable, overburden or impair the System, or interfere with another's use of the Service by others; (j) any information you enter into or submit to the Service is true, accurate, and correct; and (k) you will not attempt to gain unauthorized access to the Service, other accounts, other documents, computer systems, or networks under the control or responsibility of the Company through hacking, cracking, password mining, or any other unauthorized means.
12.2 Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SITE, SERVICE AND SIGNING ARE PROVIDED “AS IS,” AND THE COMPANY: (a) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DOES NOT WARRANT THAT SITE, SERVICE OR SIGNING ARE OR WILL BE ERROR-FREE, WILL MEET SUBSCRIBER’S REQUIREMENTS, OR BE TIMELY OR SECURE. SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THE USE OF SITE, SERVICE OR SIGNING. SUBSCRIBER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE COMPANY OR SERVICE TO ANY THIRD PARTY. USE OF SITE, SERVICE AND SIGNING ARE AT YOUR SOLE RISK.
Because some states and jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to you. In that event, such warranties are limited to the maximum extent permitted by, and for the minimum warranty period allowed by the mandatory applicable law.
12.3 USER INDEMNIFICATION OBLIGATIONS
Users and signers will defend, indemnify, and hold us, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys' fees) arising from or related to: (a) use of Site, Service or signing by user or their authorized users; (b) violation of this Agreement by users or their authorized users; (c) infringement of any intellectual property or other right of any person or entity by users or their authorized users; or (d) the nature and content of all materials, works, data, statements, and other visual, graphical, written, or audible communications of any nature submitted by users or their authorized users.
12.4 LIMITATIONS OF LIABILITY
12.4.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT,THE COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO USER, AUTHORIZED USER OF A USER OR A CUSTOMER OR COUNTERPARTY OF A USER FOR ANY DIRECT OR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
12.4.2 Cap on Damages. UNDER NO CIRCUMSTANCES WILL THE COMPANY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USER’S USE OF SITE, SERVICE OR SIGNING (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY USER TO THE COMPANY UNDER THIS AGREEMENT DURING THE 3 MONTHS PRECEDING THE DATE OF THE ACTION OR CLAIM.
12.5 Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by the Company to the User and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement, and each of these provisions will apply even if the warranties in this Agreement have failed of their essential purpose.
12.6 No Class Actions. ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND MAY NOT BE CONSOLIDATED WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY AND CANNOT BE BROUGHT AS A CLASS ACTION.
12.7 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
12.8 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any license, use or access to user under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
12.9 Jurisdictional Limitations.
As some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation may not apply to you. In that event, such exclusions and limitations shall apply to the maximum extent permitted by applicable mandatory law (and our liability shall be limited or excluded as permitted under mandatory applicable law).
- Contact Information
If you have any questions about the Terms, please email us at: firstname.lastname@example.org
Last updated 11-29-2022