Terms of Service

Last Updated: 3/1/2016

PLEASE READ THESE TERMS OF USE (THE “TERMS”) CAREFULLY BEFORE USING THE CAPTIV8 AND OTHER PRODUCTS AND SERVICES (COLLECTIVELY, THE “SERVICES”). THIS TERMS FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU OR, IF APPLICABLE, THE BUSINESS
OR EMPLOYER ON WHOSE BEHALF YOU WISH TO USE THE SERVICES (IN EITHER CASE, “CUSTOMER” OR “YOU”) AND CAPTIV8, INC., A DELAWARE CORPORATION HAVING A PLACE OF BUSINESS AT 217 S B STREET SUITE 1 SAN MATEO, CA 94401 (THE “COMPANY,” “WE,” OR
“OUR”). BY CLICKING ON “I AGREE,” “I ACCEPT” OR AN EQUIVALENT MESSAGE, OR BY ACTIVATING OR USING THE SERVICES, YOU ACCEPT THESE TERMS OF USE WITHOUT MODIFICATION AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT ACCEPT THESE TERMS OF USE, YOU
MAY NOT ACTIVATE OR USE THE SERVICES.

THE INDIVIDUAL ACCEPTING THESE TERMS OF USE ON BEHALF OF CUSTOMER REPRESENTS AND WARRANTS TO THE COMPANY THAT HE OR SHE (i) IS AT LEAST 18 YEARS OF AGE, AND (ii) HAS ALL REQUISITE POWER AND AUTHORITY TO ENTER INTO THESE TERMS OF USE
ON BEHALF OF CUSTOMER AND TO BIND CUSTOMER TO THE TERMS HEREOF.

  1. License Grant, Restrictions, Use of Services
    1. License. Subject to the terms and limitations set forth in these Terms, the Company hereby grants Customer a limited, revocable, non-transferable, non-sublicensable license to access and use the Services solely for sharing
      marketing content with designated third parties. Customer shall be responsible for all acts and omissions of persons who use the Services (each, a “User”) and for ensuring their compliance with these Terms. Customer shall
      immediately notify the Company of any loss or unauthorized access or use of a personal User ID or password.
  2. Restrictions.
    1. No Service Bureau Use. Customer may use the Services only for its internal organizational purposes and may not provide outsourcing, service bureau, application service provider or similar services to third parties.
    2. Restricted Rights. The Services and any related information are commercial computer software and commercial computer software documentation, and, as specified in FAR 12.212 or DFARS 227.7202, and their successors, as applicable,
      the U.S. federal government’s rights to use, reproduce or disclose such software, documentation and other information are restricted in accordance with the terms and conditions of these Terms. Use, duplication or disclosure
      by the U.S. federal government is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of
      the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
    3. Reservation of Rights. All rights not expressly granted to Customer are reserved by the Company. Customer shall have no rights to receive any source or object code for the Services, nor use the Services except as expressly
      set forth in these Terms.
    4. Intended Use. Customer acknowledges that the Services are intended solely for sharing marketing content, analytics and insights with designated third parties and for no other purpose. The Company shall have no liability whatsoever
      for any injuries, losses or damages arising from the use of the Services, or any components or modifications thereof, for any other purpose.
    5. Access and Use. Customer agrees to follow any policies made available within Services. You may not misuse Services. For example, don’t interfere with Services, try to access them using a method other than the interface and
      the instructions that we provide, or extensively or automatically copy any content from Services (no scraping). You may use our Services only as permitted by law, including applicable export and re-export control laws and
      regulations. We may suspend or stop providing Services to you for any reason, including for non-compliance with our terms or policies or if we are investigating suspected misconduct.
    6. Messages. In connection with your use of the Services, we may send you service announcements, administrative messages, and other information. You may opt out of some of those communications, for example, by clicking on the
      “unsubscribe” link in marketing e-mails. Please be aware that there may be a brief period before we are able to process your opt-out, but we will always respect your legal rights to opt out of receiving unwanted messages.
    7. Modifying and Terminating Services. We are constantly changing and improving the Services. We may add or remove functionalities or features, and we may suspend or stop a part or all of the Services altogether. You can stop
      using the Services at any time, although we’ll be sorry to see you go. We may also stop providing the Services to you, or add or create new limits to the Services, at any time.
  3. Title
    1. The Services furnished under these Terms are licensed, not sold, to Customer. The Company possesses all right, title and interest in and to the Services and any copyrights, patents, trademarks, service marks, trade names, trade
      dress, trade secrets and any other proprietary rights that are associated with the Services throughout the world, and Customer acknowledges that it receives no right, title or interest to the Services except for the limited
      rights provided within these Terms. You may not copy, modify, distribute, sell, or lease any part of Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless
      laws prohibit those restrictions or you have our written permission, for example, if we make software available under an open source license.
    2. Customer agrees not to contest the Company’s title and intellectual property rights in or to the Services.
    3. All discoveries, developments, techniques, advice, feedback, suggestions, improvements and similar information developed or provided as a result of Customer’s access to the Services shall be the sole property of the Company.
      The Company shall be the sole owner of all patents, copyrights, and other rights arising therefrom or in connection therewith, and may freely use, sell and exploit the foregoing information without the consent of Customer
      or any obligation to render an accounting or share profits or royalties.
  4. Privacy Policy
    1. Customer, on behalf of itself and the Users, consents to such privacy policy as is posted through the Services and/or on the Company’s website from time to time (the “Privacy Policy” http://www.Captiv8.io/policy/)
      and agrees that information collected from Users will be treated by the Company in accordance with the Privacy Policy, which is hereby incorporated by reference in the Terms. By using Captiv8’s Services, you agree that
      we can collect, use and share data from you as described in our Privacy Policy. If you submit feedback or suggestions about Services, we may use your feedback or suggestions without obligation to you. In the event of any
      conflict or inconsistency between the Privacy Policy and the terms of this Section 4, the terms of Section 4 shall control as between Customer and the Company. Without limiting any of the foregoing, and notwithstanding
      anything in these Terms to the contrary, the Company may use metrics from implementation of the Services (such as performance data) internally to improve the Company’s products and may aggregate such metrics with other
      customers’ metrics and disclose the aggregated, non-customer-specific metrics in the form of industry metrics.
  5. Content You Submit
    1. If you have an account, we may use your profile information and actions you take on our Services (including our website and mobile application) or on third-party applications connected to your account (such as reviews you write
      and comments you post) in our Services, including displaying in ads and other commercial content. However, we will respect the choices you make to limit sharing or visibility settings in your account and the content you
      share, such as limiting visibility of content to only designated recipients.
    2. Any content that the Services permit you to delete will no longer be available to any other users. If you cancel your account or delete content, the rights granted in this section shall terminate except for the right to use
      content for internal use only, to improve the Services and develop new ones. If you have canceled your account or deleted content and wish to also terminate our right to use the content for internal use, you may submit
      a written request to hello@Captiv8.io, and we will honor your request within 60 days of receiving such request. However, the content may persist in backup or residual copies for a reasonable period of time.
  6. Disclaimers.
    1. No Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN THESE TERMS, THE SERVICES, INCLUDING ANY DOCUMENTATION, ARE PROVIDED “AS IS,” THE COMPANY MAKES AND CUSTOMER RECEIVES NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND,
      AND THE COMPANY SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
      PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR UNINTERRUPTED OR ERROR-FREE OPERATION; ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE;
      OR STATUTORY REMEDY. NO STATEMENT WHETHER MADE BY THE COMPANY’S EMPLOYEES, AGENTS OR OTHERWISE SHALL BE DEEMED TO BE A WARRANTY BY THE COMPANY FOR ANY PURPOSE OR TO GIVE RISE TO ANY LIABILITY ON THE PART OF THE COMPANY.
      CUSTOMER’S RECEIPT AND USE OF THE SERVICES ARE ENTIRELY AT CUSTOMER’S OWN RISK.
    2. Customer Warranty. Customer warrants to the Company that: (i) it has the legal power and authority to enter into these Terms, and to grant all rights granted within; (ii) Customer and the Users shall at all times comply with
      any privacy, data security and other laws and regulations applicable to their activities and geographic territory; (iii) Customer and the Users shall not use the Services to upload, submit, store, publish or distribute
      any unlawful, infringing or libelous content or material or any content or material that contains viruses, worms, Trojan horses, malware or other surreptitious, harmful or invasive code; and (iv) Customer shall not violate
      or misappropriate the privacy and publicity rights of any third party, and has obtained consent necessary from any persons whose image or likeness is depicted in any content or material to use such image or likeness.
  7. Indemnification.
    1. You hereby agree to indemnify, defend and hold harmless the Company, its affiliated companies, and their respective directors, officers, employees, agents, representatives, partners, contractors, successors and assigns from
      and against all claims, losses, expenses, damages and costs (including, but not limited to, reasonable attorneys’ fees), resulting from or arising out of your actual or alleged breach of the Terms or your use or misuse
      of the Services, or any content or data submitted by Users through the Services.
  8. Limitation of Liability.
    1. Limitation of Liability. WHEN PERMITTED BY LAW, THE COMPANY AND OUR AFFILIATES WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.
    2. TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF THE COMPANY AND OUR AFFILIATES FOR ANY AND ALL CLAIMS UNDER THESE TERMS OF USE OR RELATING TO YOUR USE OF THE SERVICES IS LIMITED TO, IN THE AGGREGATE, THE GREATER OF (1)
      THE AMOUNT YOU PAID US TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU THE SERVICES AGAIN) OR (2) USD $100.
    3. IN ALL CASES, THE COMPANY AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE OR THAT IS DUE TO EVENTS OUTSIDE OF OUR REASONABLE CONTROL, SUCH AS WARS, CRIMINAL ACTIVITIES, STORMS,
      NATURAL DISASTERS, ACTS OF GOVERNMENT, ACTS OF THIRD PARTIES, SUPPLY INTERRUPTIONS, OR TELECOMMUNICATION OR INTERNET FAILURES.
    4. Material Part of Terms. Customer agrees that the disclaimer of warranties and limitations of liability in this Section 8.d are a material inducement and consideration for the Company to enter into these Terms and provide the
      Services. Accordingly, such provisions shall be enforced as written even if a remedy fails of its essential purpose.
  9. General.
    1. Governing Law. These Terms and any claim, controversy or dispute arising under or related to these Terms shall be governed in all respects by the laws of the State of California, USA, without giving effect to principles of
      conflicts of laws. The United Nations Convention for the International Sale of Goods shall not apply to these Terms. Any controversy or dispute arising under or related to these Terms shall be adjudicated in the state and
      federal courts in and for San Mateo County, California (including their applicable appellate courts), and each party consents to the exercise of jurisdiction and venue by such courts; provided, however, that either party
      may seek temporary or emergency injunctive relief in any court of competent jurisdiction to protect and preserve its rights in its intellectual property.
    2. Notices. All notices or reports shall be in writing and shall be delivered by personal delivery, facsimile transmission, e-mail, overnight mail or by certified or registered mail, return receipt requested, and shall be deemed
      given upon personal delivery, five days after deposit in the mail, or upon acknowledgment or confirmation of delivery of e-mail or facsimile transmission. Notices to the Company shall be sent to the address set forth in
      the preamble to these Terms.
    3. No Agency. The parties to these Terms are independent contractors and nothing in these Terms shall be deemed to create a joint venture, partnership, or agency relationship between the parties in these Terms.
    4. Waiver. If one party fails to enforce a provision of these Terms, it shall not be precluded from enforcing the same provision at another time. To be effective any waiver must be in writing and executed by an authorized signatory
      of the party to be charged.
    5. Severability. If any provision of these Terms is deemed unenforceable or invalid by law or by a court decision, the provision shall be changed and interpreted if possible to accomplish the intent of the provision within the
      constraints of the law. Only that provision that is deemed unenforceable or invalid, and not the entire Terms, shall be invalidated.
    6. Assignment. Customer may not assign these Terms, in whole or in part, to any third party or agency without the prior written consent of the Company. The Company may assign or delegate these Terms, in whole or in part, without
      consent at any time. The Company may also, without notice, utilize subcontractors and agents to provide aspects of the Services.
    7. Modifications. We may modify these terms or any additional terms that apply to Services to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly and the “Last Updated” date
      at the beginning of these terms. We’ll post notice of modified additional terms in the Services, or notify you by email. Changes will not apply retroactively and will become effective no sooner than ten (10) days after
      they are posted. However, changes addressing new functions for Services or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for Services, you should discontinue your
      use of Services. If there is a conflict between these terms and any additional terms for the Services, the additional terms will control for that conflict.
    8. Entire Terms. These Terms supersedes all previous agreements and understandings, whether oral or written, between Customer and the Company with respect to its subject matter. To the extent that any terms set forth in any other
      terms conflict with the terms set forth in these Terms, the terms of these Terms shall control unless otherwise expressly provided for by the Company.
    9. Export Compliance. Regardless of whether Customer is a US-based entity, Customer shall not export or re-export any of the Services (in whole or in part) to any country without ensuring that such export complies with the Export
      Administration Regulations of the U.S. Department of Commerce, or any other agency of the U.S. Government, or similar laws governing the export of software or products of any other government having jurisdiction over such
      export, re-export, or use, pursuant to any applicable statute, regulation, or governmental order. Customer agrees to remain at all times in full compliance with U.S. Government export policy and regulations and failure
      of such compliance shall constitute a material breach of these Terms.
  10. Third Party Terms
    1. You agree that in addition to these terms, your use of our or any other mobile app is subject to the usage rules set forth in Apple’s App Store terms of service, if you download a app from the App Store, or in Google Play’s
      terms of service, if you download the app from Google Play, or any other third party platform, developer or distributor end-user license agreement and/or terms and conditions by which you agree to be bound when you download
      our mobile app or otherwise access the Services. Including Instagram’s TOS and PP which is available here: https://www.instagram.com/about/legal/privacy/;
      https://www.instagram.com/about/legal/terms/