Last Update: July 18, 2019
Terms of Service
These Terms of Service (this “Agreement”) constitutes a legally binding contract between Light Blue Optics, Inc., a Delaware corporation (“Company,” “we,” “us,” “our”) and you with respect to your use of your purchased Kaptivo product and your my.kaptivo.com account (collectively, the “Service”). It is important that you carefully read and understand the terms and conditions of this Agreement. BY ACCESSING OR USING THE SERVICE, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE. If you access or use the Service on behalf of a company, principal, or other entity, you represent that you have authority to bind such entity and its affiliates to this Agreement and that it is fully binding on them. In such case, the term “you” will refer to such entity and its affiliates. If you do not have authority, you may not access or use the Service. Be advised that this Agreement contains disclaimers of warranties and limitations on liability that may be applicable to you.
Changes to Agreement; Access to Service
1.1 Changes to Agreement. COMPANY MAY FROM TIME TO TIME, IN ITS DISCRETION, MAKE CHANGES TO THIS AGREEMENT BY POSTING THE CHANGED TERMS ON https://kaptivo.com/terms-of-service. Company’s right to change this Agreement includes the right to modify, add to, or remove terms. Company will provide you with advance notice of any such changes by posting the changed terms on https://kaptivo.com/terms-of-service/changes at least thirty (30) days prior to their effectiveness. Additionally, we will endeavor to notify you of such changes via the e-mail address on record with your account; however, it is your obligation to monitor and keep such e-mail address current. We may also ask you to acknowledge such changes to this Agreement through an electronic click-through mechanism; however, YOU AGREE THAT YOUR RENEWAL OF YOUR SERVICE SUBSCRIPTION AFTER THE EFFECTIVE DATE OF COMPANY’S CHANGES TO THIS AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES. IF YOU DO NOT AGREE TO ANY SUCH CHANGES, YOU MUST TERMINATE THIS AGREEMENT, WHICH YOU SHALL HAVE THE RIGHT TO DO BY PROVIDING COMPANY WITH WRITTEN NOTICE OF SUCH TERMINATION PRIOR TO THE EFFECTIVE DATE OF SUCH CHANGES. If any such change to this Agreement is found invalid, void, or for any reason unenforceable, that change is severable and does not affect the validity and enforceability of any remaining changes.
1.2 Registration. Before using the Service, you can register with the Company and create an account. If and when you register with or provide information to the Company, you agree to: (a) provide accurate, current, and complete information as prompted (including your e-mail address) and (b) maintain and update your information (including your e-mail address) to keep it accurate, current, and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, we reserve the right to terminate this Agreement and your use of the Service. By providing the Company with your email address or other contact information, you consent to our use of this information to send you Service-related notices and other administrative notices, including any notices required by law. You are solely responsible for the activity that occurs on your account. You must keep your account credentials (including username and password) secure at all times. You may not share your account with any third party without the Company’s prior written consent unless such third party has separately entered an agreement with the Company permitting it to access your account. You must notify the Company immediately of any breach or suspected breach of security or unauthorized use of your account. The Company will not be liable for any losses caused by any unauthorized use of your account. You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent or approval of any third party. You shall establish appropriate security measures, consistent with industry standards, to protect the Service from unauthorized use. You shall notify Company immediately of any actual or alleged unauthorized use of the Service.
1.3 Access to Service. Subject to your payment of any applicable Service subscription fees (as set forth between you and the applicable retailer/reseller of your Kaptivo product) and your compliance with the restrictions set forth in Section 2, Company will use commercially reasonable efforts to provide you with access to the Service during the term of your Service subscription. If you do not pay the applicable subscription fees for the Service, you will not be able to access or use the Service and your Kaptivo product may not function in accordance with its documentation. Any renewal of your Service subscription is solely between you and the applicable retailer/reseller of your Kaptivo product.
1.4 Warranty Claims. For any warranty claims with respect to your Kaptivo product, you must contact the applicable retailer/reseller of your Kaptivo product and reference the applicable warranty provided by such retailer/reseller in connection with your purchase of such Kaptivo product. Company will have no liability or obligation, and hereby expressly disclaims any such liability or obligation, for any warranty claims with respect to your Kaptivo product, unless the Kaptivo product was purchased directly from the Company.
1.5 Feedback. You may have the opportunity to present Company with recommendations or feedback for new features, functionality, or other improvements to the Service or Kaptivo product (“Feedback”), which Company will consider, at its sole discretion, implementing in future updates to the Service. The parties hereto agree that all Feedback is and shall be given voluntarily. Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for Company. You will not provide Company with any Feedback that you are not authorized or permitted to provide to Company. Company shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to Company in Company’s sole discretion, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
1.6 Ownership. Except for the rights expressly granted in this Agreement, Company retains all right, title, and interest, including all intellectual property rights, in and to the Service. No implied license or right is granted by Company, by estoppel, reliance, or otherwise.
1.7 Product Information. We do not collect and will not share with any third party any content or imaging captured in connection with the operation of the Kaptivo product.
RESTRICTIONS AND RESPONSIBILITIES
2.1 Restrictions. You may not use the Service, or assist or encourage any other party, to engage in any of the following prohibited activities: (i) copying, framing, or mirroring any part of the Service; (ii) accessing the Service for purposes of monitoring its availability, performance, or functionality; (iii) permitting any third party to access the Service; (iv) using, copying, modifying, creating a derivative work of, reverse engineering, decompiling, or otherwise attempting to extract the source code of the software underlying the Service or any part thereof, unless expressly permitted or required by law, and in any case, without providing prior written notice to the Company; (v) violate applicable law; (b) is harmful to or interferes with the Service or any third party’s networks, equipment, applications, services, or websites (e.g., viruses, worms, Trojan horses, etc.); (c) infringes, dilutes, misappropriates, or otherwise violates any privacy, intellectual property, publicity, or other personal rights including, without limitation, copyrights, patents, trademarks, trade secrets, or other proprietary information (including unauthorized use of domain names); or (d) is fraudulent or contains false, deceptive, or misleading statements, claims, or representations (such as “phishing”); (vi) attempting to disrupt, degrade, impair, or violate the integrity or security of the Service or the computers, services, accounts, or networks of any other party (including, without limitation, “hacking,” “denial of service” attacks, etc.), including any activity that typically precedes attempts to breach security such as scanning, probing, or other testing or vulnerability assessment activity, or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of the Company internet protocol space; (vii) avoiding payment of incurring charges or fees payable by you with respect to the Service; (viii) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ix) using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Company than a human can reasonably produce in the same period of time by using a conventional web browser; (x) taking any action that imposes, or may impose, at our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (xi) collecting or harvesting any personally identifiable information, including account names, from the Service; (xii) using the Service for any commercial solicitation purposes; (xiii) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (xiv) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; (xv) submitting to the Service or to the Company any personally identifiable information, except as necessary for the establishment and operation of your account; (xvi) bypassing the measures we may use to prevent or restrict access to the Service, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; (xvii) violating any applicable law, statute, ordinance, or regulation, or encouraging any conduct that could constitute a criminal offense or give rise to civil liability; (xviii) transmitting any trade secret or other material, non-public information about any person, company, or entity without the authorization to do so; (xix) removing any copyright, trademark, or other proprietary rights notices contained in or on the Service; (xx) sublicensing, selling, renting, leasing, transferring, assigning, or conveying any rights under this Agreement to any third party, except as expressly permitted herein; (xxi) executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine, or display any packets used to communicate between the Service’s servers or any data not intended for you; and/or (xxii) harvesting or collecting information about any Service visitors or members without their express consent. Improper use of the Service may result in termination of your access to and use of the Service, and/or civil or criminal liabilities. You shall use the Service in accordance with all applicable laws.
2.2 Export. As defined in FAR section 2.101, the software accessed via the Service is a “commercial item” and according to DFAR section 252.227 7014(a)(1) and (5) is deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Equipment. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment.
TERM AND TERMINATION
3.1 Term; Termination. The term of this Agreement commences on the date on which you first access the Service and shall remain effective until terminated in accordance with its terms. We may terminate this Agreement immediately, including your access to and use of the Service, if you fail to comply with any term of provision of this Agreement.
3.2 Effect of Termination; Survival. Following the termination of this Agreement, you shall immediately discontinue use of the Service. You agree to provide written confirmation of your compliance with the foregoing requirement upon our written request. The following sections of this Agreement will survive the termination or expiration of this Agreement for any reason: Sections 1.4–1.6, 2, 3.2, 4 and 5.
DISCLAIMER; LIMITATION OF LIABILITY
4.1 Disclaimer. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
4.2 Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (i) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (ii) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (iii) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED $100. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
Notwithstanding anything to the contrary in this Agreement, no default, delay, or failure to perform on the part of Company will be considered a breach of this Agreement if such default, delay, or failure to perform is shown to be due to causes beyond reasonable control of the Company, including, but not limited to, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, nuclear disasters, or default of a common carrier. You acknowledge and agree that any breach of your obligations with respect to Company’s intellectual property rights may cause substantial harm to Company, which could not be remedied by payment of damages alone. Accordingly, you hereby agree that Company will be entitled to seek preliminary and permanent injunctive relief in any jurisdiction where damage may occur without a requirement to post a bond, in addition to all other remedies available to it for any such breach. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will, nevertheless, remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties hereto as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This Agreement is not assignable by you except with Company’s prior written consent. Any assignment in violation of the foregoing shall be void and of no force or effect. Company may transfer and assign any of its rights and obligations under this Agreement without your consent. This Agreement will be binding upon and inure to the benefit of the parties hereto, their successors, and permitted assigns. This Agreement is the complete and exclusive statement of the mutual understanding of the parties hereto and supersedes all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers, amendments, and modifications of this Agreement must be in a writing signed by authorized representatives of each party hereto. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation.” This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the State of California with regard to the resolution of any dispute arising out of or in connection with this Agreement. The application of the UN Convention on Contracts for the International Sale of Goods to this Agreement is disclaimed in its entirety. This Agreement may be executed in two counterparts, each of which will be deemed an original and which together will constitute one instrument.