Terms of Service
Last Updated: May 11, 2022
Please carefully read these Terms of Service (these “Terms”). By using any of the products, services or platforms of Captiv8 (“Services”), you (“you” or “Customer”) agree to these Terms. The effective date of these Terms as applicable to you is the earlier of the date on which you begin using our Services or the date on which you agree to these Terms, including by clicking “accept” when you register for or use our Services. These Terms, as may be amended by Captiv8 from time to time, remain in effect for the duration of your use of the Services.
These Terms are incorporated by reference into the Captiv8 Platform Master Software as a Service Agreement and Affiliate Marketing Platform Agreement, in each case to the extent separately signed by you (each such agreement signed by you, a “Primary Agreement”). Any reference herein to this “Agreement” shall be deemed to refer to the Primary Agreement(s), including, without limitation, these Terms. To the extent that these Terms conflict with the terms of any Primary Agreement, the terms of the Primary Agreement shall control. Any capitalized terms used in these Terms that are not defined herein shall have the meaning provided in the applicable Primary Agreement.
As a Customer, you agree to the following:
Applicable Data Protection Laws. Captiv8 and Customer each agree to process Personal Data in accordance with applicable data protection laws, including, as applicable, the EU General Data Protection Regulation (“GDPR”) (Regulation (EU) 2016/679) where either party processes or transfers Personal Data of Individuals located in the European Economic Area (“EEA”), the United Kingdom (“UK”) or Switzerland to the other party. “Personal Data” for purposes of this Section 1 shall mean any information that relates to an identified or identifiable person or household, or that otherwise is treated as personally identifying information under any applicable data protection law.
The Parties’ Roles. In connection with the Service, the parties agree that Captiv8 and Customer each process Personal Data collected and used in connection with the Service as Joint Controllers where each Joint Controller directs its own processing of such Personal Data, including data collection and processing related to the Service provided under this Agreement.
Joint Controller Responsibilities. Where the parties act as Joint Controllers, each agrees to the following:
Each Joint Controller will implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
Each Joint Controller determines its own purposes and manner of processing Personal Data and each is responsible for providing appropriate notice to data subjects regarding its respective data protection practices.
Each Joint Controller will treat Personal Data received from the EEA, the UK and Switzerland, in accordance with GDPR and the legislation implementing GDPR (or its equivalent or successor) in the EEA, UK and Switzerland.
Each Joint Controller will assist the other with data subject requests, including access and deletion, where appropriate and required by applicable law.
Each Joint Controller will notify the other without undue delay of any breach affecting Personal Data.
Cross-Border Data Transfers. Because it is possible that Personal Data collected in the EEA, UK or Switzerland may be transferred to a non-adequate jurisdiction outside of the EEA, UK or Switzerland in connection with this Agreement, the parties agree to enter into standard contractual clauses for the transfer of personal data from controllers in the EEA, UK or Switzerland to controllers established in third countries as required under of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation). The Standard Contractual Clauses for transfers of personal data from the EEA and Switzerland are included in Exhibit A to this Agreement and shall be incorporated as part of this Agreement upon execution by the Customer and Captiv8. For transfers from the UK, the Standard Contractual Clauses as originally set out in the European Commission Decision (2004/915/EC), and any amendments or successors to the same, are hereby incorporated in this agreement by reference.
DISCLAIMER OF WARRANTIES
All Services Provided AS IS. To the maximum extent allowed under applicable law, all products or services provided by Captiv8 to Customer are provided “AS IS,” without warranty of any kind whatsoever. Without limiting the generality of the foregoing, Customer acknowledges and agrees that it is relying solely at its own risk on any recommendations, suggestions or information provided by Captiv8, and that Captiv8 is not responsible for any such reliance by the Customer. Customer is solely responsible for all decisions that it makes and all of its acts or omissions.
Agreements with Influencers and Others. Solely for the convenience of its customers, Captiv8 provides one or more forms of agreement that its customers may use to retain Influencers for campaigns or programs but, except as otherwise provided in the applicable Primary Agreement, Customer is not required to use such form agreements and instead it is free to use any agreement that complies with these Terms. For the avoidance of doubt, Captiv8 provides no legal advice whatsoever and makes no warranties whatsoever regarding the effect, meaning or enforceability of, or otherwise regarding, any such form of agreement and Customer proceeds at its own risk. Customer should consider retaining and asking its own legal counsel to review any agreement relating to any Campaign.
By Captiv8. Captiv8 shall, at its sole expense and using counsel reasonably acceptable to Customer, defend Customer and its members, managers, directors, officers, representatives, employees and agents from and against any Claim to the extent that such Claim (i) is based directly on Captiv8’s breach of this Agreement, recklessness or willful misconduct or (ii) alleges that a product, service or Platform of Captiv8 infringes any Intellectual Property Right (as hereinafter defined) (other than infringement arising as a result of the use of any Customer branding or other materials or otherwise relating primarily to Customer’s business).
By Customer. Customer shall, at its sole expense and using counsel reasonably acceptable to Captiv8, defend Captiv8 and its members, managers, directors, officers, representatives, employees and agents from and against any Claim, other than any Claim that Captiv8 is obligated to defend under Section 3(a), to the extent that such Claim is based on or relates to Customer’s use of any Captiv8 product or service, including, but not limited to, any Claim (i) that any such use infringes, misappropriates, dilutes or otherwise violates any Intellectual Property Right, (ii) that any such use violates any law or regulation, including, without limitation, any Federal Trade Commission Endorsement Guides or other guidance regarding Influencers or any laws regarding Personal Data and privacy, (iii) by any Influencer or other person arising out of any such use (including, without limitation, any marketing campaign or affiliate marketing program conducted using any such product or service) or (iv) by any purchasers or users of any of Customer’s products or services.
Process. With respect to any Claim, the party that is obligated to defend the other under this Section 3 (the “Indemnifying Party”) shall pay any final judgment awarded with respect to or settlement of such Claim, provided that the party that seeks such defense hereunder (the “Indemnified Party”) promptly notifies the Indemnifying Party of the Claim, tenders sole control of the defense and settlement thereof to the Indemnifying Party and reasonably cooperates with the Indemnifying Party, at the Indemnifying Party’s expense, in such defense. The Indemnified Party may participate in any such defense with counsel of its choosing at its expense. Notwithstanding the foregoing, the Indemnifying Party shall not settle any Claim without the Indemnified Party’s prior consent, such consent not to be unreasonably withheld, delayed or conditioned. Notice of any Claim shall be deemed to have been provided promptly unless any delay in providing such notice substantially prejudices the Indemnifying Party.
Binding Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration administered by the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules (the “Rules”). The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties fail to agree upon an arbitrator within fourteen (14) days of delivery of an arbitration demand, then the AAA will appoint the arbitrator in accordance with the Rules. Judgment on the award of the arbitrator may be entered in any state or federal court located in San Francisco, California, and each Party irrevocably submits to the personal jurisdiction of, and irrevocably consents to venue in, any such court for purposes of any action or proceeding seeking to enter, confirm or enforce an arbitral award hereunder.
No Class Arbitrations. Customer and Captiv8 agree that, notwithstanding anything to the contrary in the Rules, the arbitration of any Dispute shall proceed on an individual basis, and neither Customer nor Captiv8 may bring a claim as a part of a class, group, collective, coordinated, representative, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Captiv8 will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time. Without limiting the foregoing, any challenge to the validity of this paragraph shall be determined exclusively by the arbitrator.
“Confidential Information” means the trade secret or other confidential information of a party that is or has been disclosed to the other party, orally or in writing, including, without limitation, any such information of which the Party receiving the disclosure may obtain knowledge through or as a result of the relationship with the disclosing party, access to the disclosing Party’s premises or communication with the disclosing Party’s employees or independent contractors, including any such information that is designated as confidential at the time of disclosure or that should, under the circumstances, be understood to be confidential by the Parties.
For all purposes of this Agreement, (i) Captiv8 will be referred to as “Discloser” with respect to its Confidential Information and “Recipient” with respect to Confidential Information of Customer, and (ii) Customer will be referred to as “Discloser” with respect to its Confidential Information and “Recipient” with respect to Confidential Information of Captiv8.
Notwithstanding any other provision hereof, Confidential Information shall not include information that Recipient shows (i) is now or later becomes generally known to the trade (other than as a result of a breach of this Agreement), (ii) is independently developed by Recipient without reference to any information supplied by Discloser or (iii) is lawfully obtained by Recipient from any third party without restriction on use or disclosure.
No Unauthorized Use or Disclosure. Recipient agrees not to use any of the Confidential Information of Discloser for any purpose at any time, other than for the purpose of exercising its rights and performing its obligations under this Agreement (the “Purpose”). Recipient shall at all times hold in confidence and not disclose or reveal to any person or entity any such Confidential Information without the clear and express prior written consent of a duly authorized representative of Discloser. Recipient shall at all times protect the confidentiality of such Confidential Information using at least such care as Recipient uses to protect its own confidential and proprietary information of like importance, but in no event less care than a prudent business person would employ under similar circumstances. Notwithstanding the foregoing, Recipient may disclose Confidential Information to the extent reasonably required in connection with the Purpose, provided that any such disclosure is made (i) solely with and subject to Discloser’s prior written consent, not to be unreasonably withheld, delayed or conditioned, and (ii) subject to written obligations of confidentiality that are at least as protective of the Confidential Agreement as this Agreement.
Subpoena. If Recipient is served with a subpoena or similar order, interrogatories, requests for information or documents, civil investigative demand or other order or process which seeks to compel the production of Confidential Information, Recipient shall, to the extent permitted under applicable law, promptly notify Discloser in writing thereof. The Parties shall then cooperate with one another for the purpose of obtaining such relief as will protect the Confidential Information. Should either Party file any timely motion for a protective order or similar motion with respect to the Confidential Information, Recipient shall not comply with such subpoena or similar order, interrogatories, requests for information or documents, civil investigative demand or other order or process until after such time as the court rules on such motion. Recipient shall protect the Confidential Information to the maximum extent possible consistent with such ruling.
LIMITATION OF LIABILITY
Exclusion of Certain Remedies. Neither Captiv8 nor its affiliates nor its or its affiliates’ licensors, suppliers or service providers nor any of their respective officers, directors, owners, employees, agents, suppliers or representatives (collectively, the “Captiv8 Parties”) will be liable for any special, incidental, consequential or exemplary damages, including, but not limited to, damages for loss of use or lost profits, arising out of or in connection with (i) any product, service or platform of Captiv8 or its use, (ii) any campaign, initiative or program conducted using any such product, service or platform, or (iii) this Agreement, even if Captiv8 or any other Captiv8 Party has been advised of the possibility of such damages.
Liability Cap. In no event will the aggregate liability of the Captiv8 Parties for any claims relating to to this Agreement or any product, service or platform provided by Captiv8, whether sounding in contract, tort or any other theory of liability, exceed, in the aggregate for all claims, the aggregate payments that Captiv8 receives under this Agreement during the one hundred eighty (180) day period before such liability first accrues.
Exceptions. This Section 6 shall not apply to, and shall not exclude any damages or other remedies for or limit any liability arising under any claim of trade secret misappropriation, copyright infringement, right of privacy violation or other infringement or violation of any intellectual property or proprietary right.
“Intellectual Property Rights” means all intellectual property rights, whether arising under the laws of the United States or any other jurisdiction, including, without limitation, copyrights, trademark rights, patents, trade secret rights, other rights in confidential information and rights of publicity.
Rights Reserved. Each Party reserves and retains all of its Intellectual Property Rights, subject only to any license granted herein or in any Primary Agreement. No services shall be provided on a work-for-hire basis or other basis that would require or result in the assignment or other transfer of any Intellectual Property Rights.
License. Customer hereby grants Captiv8 the nonexclusive, royalty-free, fully paid up, worldwide, irrevocable right and license during the term of any Primary Agreement to identify Customer as a user of Captiv8’s products and services, including, without limitation, in any advertising, promotional similar materials, Captiv8 website, case study or press release.
Notices. All notices provided under this Agreement to Captiv8 shall be sent in writing by mail and e-mail as follows:
217 S B Street Suite 1
San Mateo, CA 94401
Notices sent by Captiv8 to Customer shall be addressed to the Customer Primary Point of Contact at the email address or physical address set forth in the Captiv8 Platform Master Software as a Service Agreement. Notices shall be deemed to be effective when actually received by the addressee.
Entire Agreement. This Agreement constitutes the entire agreement between Captiv8 and Customer with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written communications relating to such subject matter. Except as otherwise provided herein, this Agreement shall not be amended except by a writing executed by both Parties.
Waiver. No waiver of any provision of this Agreement or any rights or obligations of either Party hereunder shall be effective, except pursuant to a written instrument signed by the Party or Parties waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in such writing.
Governing Law. Except as otherwise provided herein, this Agreement shall be construed and enforced in accordance with the laws of the state of California irrespective of any choice of law rules.
Severability. If all or part of any provision of this Agreement shall be deemed invalid or unenforceable under applicable law, such provision, or the invalid or unenforceable part thereof, shall be deemed stricken from this Agreement, and the remainder of this Agreement shall continue in full force and effect. Notwithstanding the foregoing, if Section 4(b) shall be deemed invalid or unenforceable, then the entirety of Section 4 shall be stricken from this Agreement, and the remainder of this Agreement shall remain in full force and effect.
Late Fees. Late fees shall accrue at the rate of 1.5% per month, compounded daily, on any amounts that are past-due hereunder.
Taxes. Customer shall pay any sales, use, excise, value added or other tax accruing with respect to any payments made hereunder, but excluding any taxes based on Captiv8’s net income.
Price Modifications and Related Changes. Prices hereunder shall be fixed for the duration of the Initial Term. No price modifications or increases are allowed without prior notice to Customer. If Captiv8 provides notice at least 45 days before the end of the Initial Term or the then-current Renewal Term (as the case may be), Captiv8 may increase or otherwise modify the Platform Fee, Transaction Fee and Paid Media Fee, and any such modifications will be effective as of the commencement of the Renewal Term.