The access and right to use Captavi™ Platform The Captavi Platform subscription shall be governed by the following Terms of Service ("TOS”). In addition, the use of the Captavi service(s), by a subscriber, constitutes an unconditional acceptance of and agreement to this Captavi TOS. Captavi reserves the right to change or modify the TOS at any time, without notice.
1. Captavi Platform Subscription Period and Subscription Editions
Minimum subscription period for the Starter Edition is 30 days. Minimum subscription period for all other Captavi Platform Editions (Growth, Professional, Enterprise, and Dedicated Enterprise) is 12 consecutive months. Renewal will be automatically triggered, unless written notice is received 30-days prior to the renewal month (renewal month is the first month the subscription is activated). The subscription Edition is dependent on the number of emails sent; number of web visitors to the Captavi-hosted website, microsites, and landing pages; and digital assets stored per instance. If any of these utilization indicators are exceeded, without the subscriber’s request to upgrade the subscription Edition from one level to the next (escalation of subscription Edition is available from the Captavi Platform Dashboard) then the subscriber’s Edition will be held at the current subscription Edition – which can jeopardize additional storage of digital assets to the website. Additional emails sent, will be automatically billed to the subscriber's credit card on file. The subscriber has the sole responsibility to request an upgrade from one subscription Edition to the next level. Captavi will not proactively contact the subscriber if the subscription Edition needs to be escalated. The number of emails sent, number of website visitors, and digital asset storage utilization, as well as the Edition Upgrade request button is located on the Captavi Platform Dashboard. The subscription rate is billed at the full rate for the month the subscription Edition is upgraded and may be prorated, but not guaranteed to be prorated.
2. Captavi Platform Technical Specifications
- Captavi Platform base applications are provided to subscribers guaranteed at 99.9% reliability
- Tier 1 Data Center Hosting -- PCI Certified
- Daily Offsite Backup of Data
- One, Captavi Platform Administrator
- A standards-compliant, currently supported Web browser, including: Chrome for PC or Mac, Firefox for PC or Mac, Internet Explorer PC or Mac. We advise to use caution with Safari, due to documented Web browser-related issues.
- DSL Internet access is preferred, but not required. Speed is dependent on the end user’s Internet bandwidth.
- We can incorporate jQuery elements on your website.
- Flash is supported, we do not recommend the use of it, since it is not platform agnostic. Flash-based sites are not supported.
- Authorize.net and PayPal are the supported online payment gateways.
For a more detailed breakdown of the Captavi Platform system architecture and infrastructure environment, please request a technical due diligence document.
3. Captavi Outage Policy
Captavi guarantees that your website will be up and running at least 99.9% of the time, during any given 12-month period. This guarantee includes network uptime, server uptime, web server and service uptime. It does not cover any areas where Captavi has no direct influence, such as backbone provider failures, fiber-optic main line cuts, DNS or Domain Registrar issues with the subscriber’s domain name, routing issues between subscriber location and the Captavi data center. The uptime guarantee is also not applicable if external issues such as Acts of God, Wars or any other natural or unnatural events caused the service interruption nor outside services provided by third parties, such as payment gateways, that Captavi cannot directly influence. Any such hard outages shall not be considered a breach of this agreement. This Outage Policy does not guarantee uninterrupted service for add-on modules, such as e-Commerce.
4. SPAM and Unsolicited Commercial Email (UCE)
on the Captavi website and shall abide by their respective terms.
5. Prohibition of Adult Content
Subscribers of Captavi services are prohibited from storing or posting adult content or links to adult content, through the subscribed service. All material of pornographic nature is considered adult content. Online image galleries whose primary purpose is the public display of fine art or artistic mediums are not considered to be adult content.
6. Change of Nameservers
In cases of new hosting accounts or additions / modifications to hosted domain names or any other cases which involve the change of nameservers of a domain from other DNS servers to Captavi DNS servers, there may occasionally be a delay of several days, weeks or longer depending on the accessibility of control options at the respective Domain Registrar. It is possible that if the Registrar (or the entity having control over the domain registration) is not cooperative, the domain nameservers cannot be changed at all. Due to the unpredictable nature of the nameserver change process, no guarantees are made regarding the amount of time a specific change may take. On customer request, nameserver change of domain names is done by Captavi on behalf of the account holder. In such cases, a successful change of nameservers cannot be guaranteed in any way or fashion as it solely depends on the accessibility or cooperation by the domain name registration’s Registrar.
7. Support Boundaries
Captavi provides technical support to one designated subscriber Captavi Platform administrator, multiple subscriber support contacts are subject to an increase in the Subscription Edition Support Plan Fee. We limit our technical support to our area of expertise. Support is billed monthly at $95.00/hour for non-coding/programming time and training and $125.00/hour for coding and programming time (e.g., jQuery, CSS coding). Support pricing is subject to change. The following is our guideline when providing support: Captavi provides support related to your Edition plan technical functioning. Captavi does not provide technical support for the subscriber’s customers. Requests for technical support is submitted via Support Ticket, located in your Captavi Platform Dashboard. If you are unable to get access the Captavi Platform online and have other questions, the answers may be on our documentation manual. We encourage you to check there first. Lastly, the "Quick Help" option in the Captavi Platform Dashboard may have the answer to your question. Please investigate these resources before contacting the Captavi Support Group.
8. Network IP Address Ownership
If Captavi assigns a subscriber an IP address for use with the subscription, the right to use that IP address shall belong only to Captavi and the subscriber shall have no right to use that IP address, except as permitted by Captavi. Captavi shall maintain and control ownership of all IP numbers and addresses that may be assigned to subscribers by Captavi. Captavi reserves the right to change or remove all such IP numbers and addresses in its sole and absolute discretion, at any time.
9. Bandwidth and Disk Usage
Subscriber agrees that number of emails, number of website visitors, and storage of digital assets do not exceed the maximum capacity allocated per month for the Edition subscribed by the customer ("Agreed Usage”). At intervals, Captavi will monitor subscriber utilization. Captavi shall have the right to promote an upgrade and/or charge for exceeded capability utilization if subscriber utilization exceeds the Agreed Usage. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all services, or termination of this Agreement, which actions may be taken is in Captavi's sole and absolute discretion, at any time deemed necessary by Captavi.
10. System and Network Security
Subscribers, or any network user,s are prohibited from violating or attempting to violate the security of the Captavi IT network or any and all components therein. Violations of system or network security may result in civil or criminal liability. Captavi will investigate occurrences, which may involve such violations and may involve and cooperate with law enforcement authorities in prosecuting subscribers who are involved in such violations. These violations include, but are not limited to:Accessing data not intended for such subscriber or logging into a server or account, which such subscriber is not authorized to access. Attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization.Attempting to interfere with service to any subscriber, host or network, including, without limitation, via means of overloading, "flooding", "mail bombing" or "crashing." Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting. Taking any action in order to obtain services to which subscriber is not entitled.
11. Notification of Violation
Captavi is under no obligation or duty to monitor each subscriber's activities to determine if a violation of the TOS has occurred. Accordingly, Captavi does not assume any responsibility through the TOS to monitor or police Internet-related activities. Captavi will only investigate suspicious activities if deemed to violate this Agreement or to harm any part of the services, network or other subscribers. If a subscriber is found to be in violation, the following steps are taken:
- First violation: Any Subscriber, which Captavi determines to have violated any element of this TOS, shall receive an email warning them of the violation. Subscriber’s service is subject to a temporary suspension at the discretion of Captavi, pending a subscriber's agreement, in writing, to refrain from any further violations.
- Second violation: Subscriber, whom Captavi determines to have committed a second violation of any element of the TOS, shall be subject to immediate suspension or termination of service without further notice.
NOTE: Captavi reserves the right to drop the section of IP space involved in SPAM or Denial-of-Service complaints if it is clear that the offending activity is causing great harm to parties on the Internet. In particular, if open relays are on your network or a customer's network or if denial of service attacks are originating from your network. In certain rare cases, we may have to do this before attempting to contact the subscriber. Captavi will contact the subscriber as soon as it is feasible.
12. Disclosure to Law Enforcement
The TOS specifically prohibits the use of our service for illegal activities. Therefore, subscriber agrees that Captavi may disclose any and all subscriber information including assigned IP numbers, account history, account use, etc. to any law enforcement agency that requests such information, provided they possess the proper court-approved warrant, without consent or notification to the subscriber.
Each party (the "Indemnifying Party”) hereby indemnifies the other party (the "Indemnified Party”), its officers, directors, employees and agents, and agrees to defend and hold them harmless from and against any and all liability, damage, loss or expense (including reasonable attorneys fees) arising from any claim, demand, action or proceeding based upon the alleged breach or untruthfulness of any of the Indemnifying Party’s representations or warranties, or incurred in the settlement or avoidance of any such claim, provided, however, that the Indemnified Party shall give prompt notice to the Indemnifying Party of the assertion of any such claims and provided further that Indemnifying Party shall have the right to select counsel and control the defense thereof, subject to right of the Indemnified Party to participate therein.
All trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Services, or otherwise used to perform the Services for Subscriber or its Affiliates hereunder, are and will remain the sole and exclusive property of Captavi, whether or not specifically recognized or perfected under applicable law. Captavi shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the existing Services or any new programs, upgrades, modifications or enhancements developed by Captavi in connection with rendering the Services to Subscriber or its Affiliates, even when refinements and improvements result from Subscriber’s request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Captavi by virtue of this Agreement or otherwise, Subscriber hereby transfers and assigns (and, if applicable, shall cause its Affiliates to transfer and assign) to Captavi all rights, title, and interest which Subscriber or its Affiliates may have into such refinements and improvements.
Establishment of this service is dependent upon receipt of payment of stated charges by Captavi as per the billing cycle stated in the Agreement. Failure to pay Captavi may temporarily deny or terminate service upon the failure of the subscriber to pay the charges when due. Such termination or denial will not relieve the subscriber of responsibility for the payment of all accrued charges and any collection fees.
16. Suspension of Service or Cancellation
Captavi reserves the right to suspend network access to any subscriber if in the judgment of Captavi, the subscriber‘s account is the source or target of a violation of any of the terms of the TOS, or for any other reason which Captavi deems necessary. If inappropriate activity is detected, all accounts of the subscriber in question will be deactivated until our investigation is complete. Prior notification to the subscriber is not assured. In extreme cases, law enforcement will be contacted regarding the activity. The subscriber may not be credited for the time the subscriber’s machines were suspended if the subscriber is found to be at fault.
17. Disclaimer of Warranties
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED HEREUNDER BY CAPTAVI "AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, CAPTAVI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, WHETHER MADE BY EMPLOYEES OF CAPTAVI OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY CAPTAVI FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF CAPTAVI WHATSOEVER.
18. Subscriber Acknowledgement
Subscriber acknowledges that the service provided is of such a nature that the service can be interrupted for many reasons other than the negligence of Captavi and that damages resulting from any interruption of service are impossible to ascertain. Therefore, subscriber agrees that Captavi shall not be liable for any damages arising from such causes beyond the direct and exclusive control of Captavi. Subscriber further acknowledges that the liability of Captavi, for its own negligence, may not in any event exceed an amount equivalent to charges payable by subscriber for services during the period damages occurred. In no event shall Captavi be liable for any special or consequential damages, loss or injury.
19. Force Majeure
To the extent one of the parties hereto is prevented from performing any of its obligations hereunder due to circumstances reasonably beyond its control (including, but not limited to, the action or inaction of any governmental, civil or military authority; a strike, lockout or other labor dispute; or a fire, flood, war, riot, theft, earthquake or other natural disaster, acts of terrorism or other civil disturbance) and not involving such party’s negligence, such party shall not be liable to the other party for any losses or damages arising out of such non-performance. In the event a party hereto is prevented from meeting its obligations by such unforeseen circumstances, and such party is unable to provide assurances that recovery will occur within fifteen (15) days, or recovery fails to occur within fifteen (15) days, the other party hereto shall have the right to terminate this Agreement, effective upon delivery of written notice of the same to the other party, and no party shall be liable to any other arising out of such termination, except for obligations existing prior to such termination.
20. Miscellaneous Provisions
Subscriber must provide Captavi real and current contact information at all times. E-mail address, telephone and fax contacts are used, and in that order of preference. Captavi takes no responsibility for any material placed on its network by others. Captavi is not responsible for the content of any other websites linked to. Links to other sites are provided as Internet navigation tools only. Captavi disclaims any responsibility for any inappropriate use and any liability to any person or party for any other person or party's violation of this policy.
Either party shall have the right to terminate this Agreement prior to expiration of its term: (i) in the event of the other party’s material breach of any of the provisions hereof and the failure of the breaching party to cure such breach to the reasonable satisfaction of the non-breaching party within fifteen (15) days after receipt of written notice informing it of such material breach, (ii) in accordance with the provisions TOS hereof, or (iii) in the event a petition seeking composition of creditors, the protection afforded by the United States Bankruptcy Code or benefit of other laws affecting the rights of creditors generally is filed by or against the other party and such petition remains unstayed or undismissed for a period of thirty (30) days. Upon termination of this Agreement, all services provided to Subscriber hereunder will terminate. Promptly upon termination of this Agreement for any reason, Subscriber must return or destroy, as requested by Captavi, all materials pertaining to the Services (including all copies thereof).
22. Resolution of Outstanding Balances:
Should it become necessary for Captavi to place an unpaid account in the hands of an attorney for collection, Subscriber hereby agrees to pay all reasonable attorney fees, in no event to be less than ten (10%) percent of total principal owing at time an attorney is retained to collect said account, incurred by Captavi in enforcing this Agreement or otherwise proceeding the collection process and any resulting cost of court.
If any provision of the TOS shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of the TOS is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
24. Applicable Law
The Agreement is and these TOS are to be governed by the laws of the State of Texas. Any dispute shall be resolved in the Courts of competent jurisdiction in Fort Bend County.
This Agreement shall inure to the benefit of, and shall be binding upon, both parties and their respective successors and permitted assigns. Neither party may assign or delegate this Agreement or any of its rights or duties under this Agreement without the prior written consent of the other party, except as expressly set forth herein or to an individual or entity into which it has merged or which has otherwise succeeded to all or substantially all of the assets or equity securities of the assignor, and which has assumed in writing or by operation of law, the assignor’s obligations under this Agreement.
26. Entire Agreement; General
This Agreement, including all attachments and exhibits hereto, represents the complete understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements, whether written or oral, between the parties. This Agreement may not be modified or amended, except by a written instrument executed by each of the parties hereto. This Agreement is for the sole benefit of the parties hereto and is not for the benefit of any third party. The parties hereto shall be deemed to be independent contractors hereunder, and as such, neither party shall be, nor hold itself out to be, an employee or agent of the other party. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this Agreement.
27. Content and Database Ownership
As between Subscriber and Captavi, Subscriber will own all right, title and interest in and to any and all (a) materials that are proprietary to and provided by or on behalf of Subscriber or derived by Captavi from any such materials, including through the conversion of materials to a format ready for display on the website, (b) Subscriber proprietary data and database information, (c) backups of the foregoing (the "Subscriber Content”). Subscriber grants Captavi a non-exclusive, non-transferable, limited license, revocable at will by Subscriber, to use the Subscriber Content solely in connection with the establishment of the website. Captavi may only make such copies of the Subscriber Content as may be necessary to perform its obligations to Subscriber. Except for this limited license to Captavi, Subscriber expressly reserves all other rights in and to the Subscriber Content. This provision shall survive the termination of this Agreement.
28. Technology Ownership
Captavi retains ownership and copyright to all the Captavi Platform applications and other software employed by Captavi in connection with the design, development, implementation, hosting, support and maintenance of the Website, as well as any updates thereof. Captavi grants Subscriber the right to use Captavi Platform, as a subscriber to the Web-hosted Software-as-a-Service pursuant to this Agreement (or, in the case of third-party software, sublicense or, in the case of Software-as-a-Service, subscription) for Subscriber’s users to use the Captavi Platform applications in conjunction with accessing and using the Website. Captavi acknowledges that Subscriber is using the Captavi Platform applications in order to test certain features and functionality of its business methods in order to develop a final production version of its Website that may be designed, developed, implemented, hosted and supported by Subscriber or others and may contain Subscriber Content, and appear to perform same or similar functionality as the Captavi Platform applications. Subscriber covenants not to reverse engineer, decompile, disassemble or copy any of the Captavi proprietary software processes or code for any purpose, including the development of Subscriber’s final production Website or derivatives therefrom or provide any third party (with the exception of Subscriber employees) with any information on or access to or use of the Captavi Platform applications.
29. Captavi Backup Obligations
Captavi shall backup website-related files on the following basis:
- 30, daily backups (Daily restore points – initiating once a day – e.g., 12:00pm), disposed of after the next backup cycle;
- Backups are provided for website and database restoration purposes only and will not be provided for any other purpose;
- CSS, HTML, Flash, PDF files, site images and graphics for display on the website;
- Any Subscriber database information stored in the Captavi CRM, and;
- Website activity data (limited to the collected profile information) collected, while the website is online for public or member use.
Backup format cannot be specified, due to the mirror backup of the Website-related files.
29. Captavi Confidentiality Obligations
Captavi acknowledges that it will, in performing the Services, have access to or be directly or indirectly exposed to Subscriber Confidential Information. Captavi shall hold confidential all Subscriber Confidential Information, and shall not disclose or use such Subscriber Confidential Information without express written consent of Subscriber, or permit any third party to do so. Captavi shall use reasonable measures and reasonable efforts to provide protection for Subscriber Confidential Information, including measures at least as strict as those Captavi uses to protect its own Confidential Information. Such measures shall include, without limitation, requiring employees and independent contractors of Captavi to sign a non-disclosure agreement before obtaining access to the Subscriber Confidential Information. This provision shall survive the termination of this Agreement.
The term "Confidential Information” means any information relating to or collected in the course of the Agreement including, but not limited to, the material terms of this Agreement, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, projections, customer lists, Subscriber Content, business relationships with other entities, marketing data, and all information regarding transactions and communications received by means of the Website. The term "Confidential Information” does not include information that: (i) on the date of the Agreement was already known to the receiving party or available to the public; (ii) after the date the Agreement becomes effective, becomes known to the receiving party or to the public other than by disclosure by another party to this Agreement; or (iii) was or is developed by the receiving party independently without any use of any of the disclosing party’s Confidential Information.
30. Subscriber Confidentiality Obligations
Subscriber acknowledges that it will, in retaining Captavi Services, have access to or be directly or indirectly exposed to Captavi Confidential and Proprietary Information, Business Processes, and Intellectual Property. Subscriber shall hold confidential all Captavi Confidential Information, and shall not disclose or use such Captavi Confidential Information without express written consent of Captavi, or permit any third party to do so. Subscriber shall use reasonable measures and reasonable efforts to provide protection for Captavi Confidential Information, including measures at least as strict as those Subscriber uses to protect its own Confidential Information. Such measures shall include, without limitation, requiring employees and independent contractors of Subscriber to sign a non-disclosure agreement before obtaining access to the Captavi Confidential Information. This provision shall survive the termination of this Agreement.
The term "Confidential Information” means any information relating to or collected in the course of the Agreement including, but not limited to, the material terms of this Agreement, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, projections, customer lists, Captavi Content, business relationships with other entities, marketing data, and all information regarding transactions and communications received by means of the Website. The term "Confidential Information” does not include information that: (i) on the date of the Agreement was already known to the receiving party or available to the public; (ii) after the date the Agreement becomes effective, becomes known to the receiving party or to the public other than by disclosure by another party to this Agreement; or (iii) was or is developed by the receiving party independently without any use of any of the disclosing party’s Confidential Information.
31. Captavi Warranties, Representations and Covenants
Captavi represents, warrants and covenants that: (i) the Services will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable, trained and qualified personnel; (ii) the Website will be designed and will operate in conformity with the terms and conditions of this Agreement; (iii) Captavi has full authority to enter into this Agreement; (iv) all obligations owed to third parties with respect to the activities contemplated to be undertaken by Captavi pursuant to this Agreement are or will be fully satisfied by Captavi, so that Subscriber will not have any obligations with respect thereto; (v) Captavi is the owner of or otherwise has the right to use and distribute all Captavi supplied materials and methodologies used in connection with providing the Services hereunder; (vi) the Captavi Platform and other Captavi supplied materials used by Captavi in fulfilling its obligations under this Agreement (except the Subscriber Content) do not now and will not infringe upon or misappropriate any copyright, patent, trade secret, trademark, contract right or other third party right; (vii) none of the Captavi Platform consists or will consist of items or rights whose use requires Subscriber to disclose or license to any third party any Subscriber Content or other items or rights in which Subscriber has an ownership interest; (viii) the Website will not violate any federal, state, or local law or regulation; and (ix) Captavi shall notify Subscriber immediately of any breach or failure of such security and shall cooperate fully with Subscriber, at the expense of Captavi expense, in any investigation or prosecution thereof by Subscriber. This provision shall survive the termination of this Agreement.
32. Subscriber’s Warranties, Representations and Covenants
Subscriber represents, warrants and covenants that: (i) Subscriber has full authority to enter into this Agreement; and (ii) the Subscriber Content will not infringe upon or misappropriate any copyright, patent, trademark, trade secret, contract right or other third party right; and (iii) all obligations owed to third parties with respect to the activities contemplated to be undertaken by Subscriber pursuant to this Agreement are or will be fully satisfied by Subscriber so that Captavi will not have any obligations with respect thereto. This provision shall survive the termination of this Agreement; (v) Subscriber is the owner of or otherwise has the right to use and distribute all Subscriber supplied materials and methodologies used in connection with retaining Captavi Services hereunder; (vii) the Website will not violate any federal, state, or local law or regulation; and (viii) Subscriber shall notify Captavi immediately of any breach or failure of such security and shall cooperate fully with Captavi, at Subscriber’s expense, in any investigation or prosecution thereof by Captavi. This provision shall survive the termination of this Agreement.