INTRODUCTION – ANYONE ORDERING OR USING THE SERVICES MUST READ THIS ENTIRE AGREEMENT

TERMS and CONDITIONS OF USING THE SERVICES

If ordering Capsilon’s Online Services:

If you are ordering Capsilon’s online services (the “Services”), after signing a pricing agreement with Capsilon, you are agreeing to all of the terms and conditions set forth below in this agreement concerning the terms and conditions of use of the Services (the “Agreement”). If you are ordering the Services on behalf of a corporation or other legal entity, you represent that you have the authority to bind such entity and that the terms “you” and “your” shall refer to such entity. In this Agreement, a person or legal entity ordering the Services is referred to as an “Account Holder” and an “End User”.

 

If using Capsilon’s Online Services:

If you have received a user identification or a password from your employer, who is an “Account Holder” to use Capsilon’s online services (the “Services”), when you access the Services, you are agreeing to all of the terms and conditions set forth below in this agreement concerning the terms and conditions of use of the Services (the “Agreement”) as an End User. If you are planning to use the Services as an employee of another who has ordered the Services, and you do not agree with any part of the Agreement that pertains to End Users, or if you do not have a valid user identification or password, or if you have no authority to use the Services, you must not access or use the Services.

 

Welcome

Welcome to the Capsilon website (www.Capsilon.com, this “Site”), provided to you by Capsilon Corporation, a Delaware corporation located at One Sansome Street, Suite 1800, San Francisco, CA 94104, (“Capsilon” or “Capsilon”), to process and manage loan documentation that you originate (“Customer Data”). Your use of this Site is governed by and subject to this Agreement, which incorporates the terms of Capsilon’s End User Agreement attached as Exhibit A. Unless specified as a term of use for only Account Holders, the terms “you” and “your” as used in this Agreement pertain to each End User of the Services. If you are ordering the Services and you agree to the terms of this Agreement, you must establish an account with Capsilon to purchase the Services. If you are ordering the Services, you agree that each person listed in your account information is your agent and has full authority to act on your behalf as to the Services. The terms of this Agreement will cover any situation where you use and access the Services or you permit a person to use and access the Services, even if that person is not listed on an Account Holder’s account information. The Services may only be used for an Account Holder’s internal business purposes.

 

Changes to Terms and Conditions of Agreement and Services

In Capsilon’s sole discretion, this Agreement may be updated and amended to incorporate additional terms. Capsilon will send you email notices regarding amendments or updates to this Agreement. All such updates and changes are effective immediately after Capsilon posts a revised version of this Agreement or other notice on the Site. Capsilon has the right to modify and/or update the Services, including but not limited to aspects of the Services dealing with access, outbound fax requirements, overnight delivery services, and fee schedules with prior notice.

 

Account Registration

As an Account Holder, you agree that all information that you provide Capsilon in connection with your access to and use of the Site and Services is true, accurate and complete to the best of your knowledge, belief and ability, and that you will maintain and routinely update such information to keep it true, accurate and complete at all times. Capsilon reserves the right to terminate this Agreement and to refuse, restrict or discontinue service or access to the Site and the Services in the event that any information provided by an Account Holder in the account registration process is, at any time, untrue, inaccurate or incomplete or if an Account Holder otherwise fails to comply with the terms of this Agreement or any licenses, purchase orders or other agreements that the Account Holder has with Capsilon or with Capsilon to use the Services. To access or use the Services you will be required to establish and obtain a user login or user ID (User ID) and a password. You authorize Capsilon to process any and all account transactions initiated through the use of your User ID or password.  Capsilon, in its sole discretion, reserves the right to refuse access to the Services or any part of the Services or to delete your User ID or password.  In the event that any information provided in the account registration process is, at any time, untrue, inaccurate or incomplete, or if you otherwise fail to comply with the terms of this Agreement, you agree that Capsilon shall not be liable to you for loss or damages that may result from its refusal to grant access to the Services.

 

Privacy Policy

  1. Information collected to register Account Holders and End Users

Non-public personal information that Capsilon collects and reviews to register Account Holders and End Users may be disclosed, as provided by state and/or federal laws, to companies and our affiliates that perform services on our behalf so that we may provide customers with and offer competitive products and services. We may also disclose non-public personal information about you under circumstances as permitted or as required by state and/or federal law. We restrict access to non-public information about you to those employees who need to know that information to provide the Services to you. Public information regarding an Account Holder or End User may be provided to our affiliates in order to allow an affiliate to provide you with or offer you additional services. We maintain physical, electronic and procedural safeguards that comply with federal regulations to guard your non-public personal information.

 

  1. Information submitted by you through and stored by the Services – Customer Data

In using the Services, we understand that you will be sending Customer Data, including but not limited to, non-public, personally identifiable information regarding your customers through the Services provided under this Agreement. While monitoring or repairing the Site or the Services, employees of Capsilon may gain access to Customer Data in order to maintain the Site and the Services. We restrict access to such information to those employees or agents of Capsilon who need access to maintain the Site or the Services. We also strive to follow generally accepted industry standards to protect Customer Data, both during transmission and once received. We strive to use commercially acceptable means to protect Customer Data, and we strive to ensure that the Services comply with the requirements of privacy laws in the United States. In recognition of responsibilities under the federal Gramm Leach Bliley Act and related interagency guidelines (the “Act”), Capsilon has implemented a comprehensive information security program, including administrative, technical, and physical safeguards, designed to (i) ensure the security and confidentiality of Customer Data; (ii) protect against any anticipated threats or hazards to the security or integrity of Customer Data; and (iii) protect against unauthorized access to or use of Customer Data that could result in substantial harm or inconvenience to any customer. The security program includes the following controls and processes : (a) access controls on information systems of the Services, including controls to authenticate and permit access only to authorized individuals and controls to prevent employees from providing your Customer Data to unauthorized individuals who may seek to obtain this information through fraudulent means; (b) access restrictions at physical locations containing your Customer Data, such as buildings, computer facilities, and records storage facilities to permit access only to authorized individuals; (c) encryption of electronic Customer Data, including while in transit or in storage on networks or systems to which unauthorized individuals may have access; (d) dual control procedures, segregation of duties, and employee background checks for employees with responsibilities for or access to Customer Data; (e) monitoring systems and procedures to detect actual and attempted attacks on or intrusions into information systems containing Customer Data; (f) response programs that specify actions to be taken when Capsilon or Capsilon suspects or detects that unauthorized individuals have gained access to the information systems, including appropriate reports to regulatory and law enforcement agencies; and (g) measures to protect against destruction, loss, or damage of Customer Data due to potential environmental hazards, such as fire and water damage or technological failures. Upon request, Capsilon will provide you with a copy of a SAS 70 type II audit report and an overview of its Information Technology policies and controls, as well as similar documentation that is reasonably requested to show that key security controls are in place.

 

IMPORTANT DISCLOSURE OF OFFSHORE OPERATIONS

We recognize that you may have requirements to notify a regulatory agent of the location of your Customer Data. Please note that the majority of Capsilon’s operations are located in Colorado, Michigan, and California, including its back-up data and storage center. However, Capsilon’s development operations are located in India.  With Customer’s written approval, Customer Data may be temporarily used in India during troubleshooting or support engagements.

 

Fees, Payment and Term of Service

As consideration for the Services purchased, you agree to pay Capsilon the applicable Service fees set forth in this Site upon receipt of your invoice from Capsilon. All fees are due immediately upon receipt of an invoice and are nonrefundable, even in the event of termination or cancellation of this Agreement for any reason. You must provide Capsilon with a valid credit card or with bank account information which must include the account and routing numbers in order to authorize Capsilon to automatically withdraw the funds from your bank account (ACH) as a condition to signing up for the Services. Capsilon reserves the right to modify its fees and charges and to introduce new charges at any time. You agree and acknowledge that Capsilon will automatically charge your credit card the exact amount on an invoice for Services or will automatically withdraw (ACH) from your bank account the exact amount on the invoice for the Services. If you believe that a charge to your credit card or a withdrawal from your bank account is incorrect or was not authorized, you must contact Capsilon in writing within 60 days of the date of the transaction to be eligible to receive an adjustment or credit.

 

Invoices that remain unpaid 10 days past the due date are subject to a late processing fee that is equal to the greater of (i) 3% per month of any outstanding balance (not to exceed $75) or (ii) a flat fee of $25, plus, in either case, all expenses of collection. In addition to any other rights granted to Capsilon in this Agreement, Capsilon reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes 30 days past due. If you or Capsilon initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the fees section set forth in this Site. You agree that Capsilon may charge such unpaid fees to your credit card, withdraw the monies owed from your account under an ACH agreement or otherwise bill you for such unpaid fees. Capsilon reserves the right to charge you a reconnection fee in the event that you are suspended from the Service and thereafter request to access the Service again. You will continue to be charged during any period of suspension. You agree and acknowledge that Capsilon has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more past due.

 

Cancellation of Service

Only your Site Administrator may cancel a Site subscription. Your Site Administrator may cancel your Site Subscription at any time by calling Customer Service at 877-DOC-VELO and submit a written request to billing@Capsilon.com.  Any cancellation will be effective immediately.  Capsilon will provide you access to the Site for 30 days from the date of cancellation (also known as the “Retrieval Period”) to allow you to download or save your files. Any usage of the Site during the billing cycle prior to the cancellation request and/or during the Retrieval Period that incurs a cost based on your subscription plan will be charged at your current subscription rate. CAPSILON WILL NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL TERM SUBSCRIPTION PERIODS. After the 30 day Retrieval Period, the Site will be deactivated and your Customer Data will be deleted in a commercially reasonable manner to ensure its confidentiality. In the event that the 30 day Retrieval Period is not adequate for the amount of Customer Data that has been stored, Capsilon will cooperate with you to ensure a proper disengagement plan.

 

Folder Usage and Restrictions

The use of the Services requires that you create electronic folders, with each folder hosting a separate batch of Customer Data (i.e., each separate loan or other transaction for which you use the Services requires a separate electronic folder). You are restricted from storing loan data for multiple loans or transactions in the same electronic folder. A folder becomes an “Activated Folder” immediately when you place the first item of loan documentation into the folder. All Customer Data will be stored in such folder for a limited time period. You will be charged for each Activated Folder.

 

General Practices Regarding, Use, Storage and Service Access

You acknowledge that Capsilon may establish from time to time general practices and limits concerning use of the Services, including without limitation, establishing the maximum amount of storage space you have on the Service at any time, as well as limiting the number of times (and the maximum duration for which) you may access the Service in a given period of time. Capsilon will take responsibility for any permanent deletion or failure to store any Customer Data maintained or transmitted by the Services provided that such deletion or failure was due to Capsilon’s negligence and provided that your subscription has not been cancelled. You agree that Capsilon is not liable for any interruption of the Services for any reason, including but not limited to an interruption because of repairs to the Site, and for any damages whatsoever caused by your inability to gain access to your Customer Data during an interruption. As a condition of use for these Services, you agree that, in the event of an error with the Services, an authorized service technician will be permitted to access the Customer Data as necessary to resolve the problem.

 

Our Service Level Agreement to You

Disaster Recovery – In the event of a natural or man-made disaster, all Customer Data will be migrated to a secondary site in a separate physical location that is a replica of the current production environment. It may take up to 72 hours to migrate Customer Data over to the secondary site.

Data Back-Ups – Daily incremental backups are performed by executing a snapshot of all Customer Data seven (7) days a week at Midnight Eastern Standard Time.

Live Customer Support – We will provide Live Customer Support from 8:00 a.m. until 6:30 p.m. Eastern Standard Time. For your convenience, our agents will also be on call from 6:30 p.m. until 8:00 p.m. Eastern Standard Time. If you seek assistance by calling our customer support line pertaining to systems usage or enhancements issues, you will receive a response from the support center within two business hours. Those items that may require a build will be completed within the build contract dates as designated from time to time by Capsilon, and we will be able to provide you with a projected date of such build.

 

Ownership of and Responsibility for Content of Customer Data

Capsilon does not own or control the content of any Customer Data. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. You understand that the content of all Customer Data, whether publicly posted or privately transmitted, is your sole responsibility. This means that you, and not Capsilon, are entirely responsible for all Customer Data that you upload or otherwise transmit via the Services. Capsilon does not control the content of the Customer Data uploaded or otherwise transmitted by you or other end users via the Services and, as such, do not guarantee the accuracy, integrity or quality of such Customer Data.

 

File Disclaimer

Every effort is made to assure that your files are protected while in Capsilon’s possession. All employees and contractors are trained in the proper handling and safe keeping of your Customer Data. However, in the unlikely event that your file is lost, stolen or destroyed, Capsilon assumes no liability unless the loss or destruction of your Customer Data was caused solely by Capsilon’s gross negligence.

 

No Resale of the Service and Additional Restrictions

You agree not to copy, sell, resell, rent or sublicense (including offering the Service to third parties on an applications service provider or time-sharing basis), lease, loan, redistribute, or create a derivative work of any portion of the Service, use of the Service, or access to the Service. You agree not to access the Service by any means other than through the interface that is provided for use in accessing the Service. To the maximum extent permitted by law, you will not (a) modify, reverse engineer, decompile, disassemble or attempt to derive the source code of the software related to the Services; (b) rent, lease, loan, sell, sublicense, distribute, transmit assign, or otherwise transfer your rights to use the Services to any third party; (c) make any copy of or otherwise reproduce the software related to the Services or any portion thereof, except as expressly authorized; or (d) participate in or support any security breaches to the systems such as hacking, DOS, or viruses.

 

Security and User ID or Passwords

Capsilon takes commercially reasonable measures to secure and protect information transmitted to and from the Site. You are responsible for maintaining the confidentiality of any login User ID and any password that may be assigned to you by Capsilon, and you are fully responsible for all access and any activity that occurs through use of your User ID or password. You agree to immediately notify Capsilon of any unauthorized use of your User ID or password or any other breach of Site security of which you become aware. You also agree to take such further steps as may be reasonably requested by Capsilon to prevent unauthorized use of your User ID and password. Capsilon cannot and will not be liable for any loss or damage arising from any unauthorized access or use of your User ID or password.

 

Additionally, Customer shall manage all passwords for the Services and any and all resets of such passwords that Customer provides to any of its employees, agents and/or other end users of the Services. Customer assumes all liability relative to the passwords that it is assigned for the Services and any end user’s access to the Services and use of such passwords. Customer shall hold harmless and indemnify and defend Capsilon for all damages, losses, costs, and expenses (including reasonable attorney’s fees) in the event of any security breach resulting from or arising out of the management or lack of management by Customer of any passwords provided to it for the Services.

 

Compliance with Laws

You shall have sole responsibility for securing all necessary permissions and clearances with respect to the Customer Data and for ensuring that your use of the Site and the Services to access, manage and manipulate the Customer Data complies with any and all laws, rules, and regulations applicable thereto, including (but not limited to) those concerning any privacy rights of your clients. As stated in the Privacy Policy of this Agreement, the Services comply with your obligations under the Gramm Leach Bliley Act. You have sole responsibility to comply with other laws, rules and regulations applicable to the format, location and duration of the retention of the Customer Data.

 

Proprietary Content

Capsilon has expended substantial time, effort and funds to create the Site and to provide and sell the Services that are available through the Site. You understand and agree that Capsilon owns or has been licensed by third parties to use all right, title and interest in and to the Site and the Services made available on or through the Site, and all information, text, data, databases, graphics, images, sound recordings, audio and visual clips, logos, software, and other content contained in it (the “Content”). You further understand that the collection, design, selection and arrangement of the Content contain valuable proprietary information that is protected by applicable intellectual property and other proprietary rights and laws of the United States and other countries, and that you acquire no ownership interest by accessing and using the Site and the Services. Such intellectual property and proprietary rights include, but are not limited to various patents, copyrights, trademarks, and service marks, registered trademarks and service marks, and trade secrets and all such rights are and shall remain the property of Capsilon and its licensors.

 

Other Conduct

You agree that you will not use the Services to: (a) upload or otherwise transmit any Customer Data or domain name that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity, including, but not limited to, any Capsilon representative, or misrepresent Capsilon affiliation with any person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Customer Data transmitted through the Services; (e) upload or otherwise transmit any Customer Data that you do not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (f) upload or otherwise transmit any Customer Data or domain name that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person; (g) upload or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation, except in those areas of the Services that may be designated for such purpose; (h) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (i) interfere with or disrupt the Services or servers or networks connected to the Services; (j) violate any applicable law or regulation, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission and any rules of any securities exchange, and laws regarding the export of technical data; (k) incite or provide instructional information about illegal activities; or (l) conduct raffles, contests, lotteries or sweepstakes.

 

Limitation of Liability and Disclaimer of Warranties

EXCEPT AS SPECIFICALLY REPRESENTED IN THIS AGREEMENT, CAPSILON MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WHATSOEVER, INCLUDING WITHOUT LIMITATION, WARRANTIES FOR THE (a) ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY CONTENT PUBLISHED ON OR AVAILABLE THROUGH THE SITE (b) THAT THE SERVER THAT MAKES THE SITE AVAILABLE IS FREE OF VIRUSES OR OTHER COMPONENTS THAT MAY INFECT, HARM, OR CAUSE DAMAGE TO YOUR COMPUTER EQUIPMENT OR ANY OTHER PROPERTY WHEN YOU ACCESS, BROWSE, DOWNLOAD FROM, OTHERWISE USE THIS SITE OR SERVICES. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO CAPSILON’S NEGLIGENCE, SHALL CAPSILON BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES RELATED TO (a) THE USE OF (b) THE INABILITY TO USE OR (c) ERRORS OR OMISSIONS IN THE CONTENTS AND FUNCTIONS OF THE SITE AND THE SERVICES, EVEN IF CAPSILON OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXLCUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION OR EXLCUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL CAPSILON’S LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) EXCEED THE AMOUNT THAT YOU PAID FOR THE SERVICES TO CAPSILON OVER THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE TIME THAT YOUR CLAIM AROSE OR, IF YOU HAD NOT BEEN A SUBSCRIBER OF THE SERVICES OVER THE ENTIRE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE TIME THAT YOUR CLAIM AROSE, THEN THE AVERAGE MONTHLY AMOUNT YOU PAID FOR THE SERVICE DURING THE MONTHS IMMEDIATELY PRIOR TO THE TIME YOUR CLAIM AROSE MULTIPLIED BY 12. ADDITIONALLY, THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CAPSILON IS NOT RESPONSIBLE FOR SUCH DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

 

Indemnification

You agree to indemnify, defend, and hold Capsilon and all of its agents, directors, employees, information providers, licensors and licensees, officers, affiliates and parent (collectively, “Indemnified Parties”), harmless from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs), incurred by the Indemnified Parties in connection with any claim arising out of any breach by you and the terms and conditions of this Agreement. Capsilon agrees to indemnify, defend, and hold you harmless from and against any and all liability and costs (including without limitation, attorneys’ fees and costs), incurred by you in connection with any claim arising out of a breach by Capsilon of and as provided by the terms and condition of this Agreement.

 

Linked Sites

Any hyperlinks that are provided on the Site to other web sites may not be under the control of Capsilon. Capsilon does not sponsor or endorse such other linked web sites and is not responsible for the accuracy or content of such other web sites. Capsilon disclaims all liability for such other websites, the use of such other web sites, or the use of the links to the other web sites. Capsilon also makes no representations or warranties with regard to any products or services provided by such other web sites. Links on the Site to other web sites do not imply that Capsilon is affiliated with or is legally authorized to use the trademark, trade name, logo or copyright symbol displayed in connection with or accessible through such links, or that any linked site is authorized to use any trademark, trade name, logo, or copyright symbol owned by Capsilon or its affiliates. Capsilon is not responsible for the privacy practices of any other web sites that are linked.

 

EXAMINATION OF CAPSILON

We acknowledge that the banking regulatory agencies may have authority to regulate and examine services provided to you. Upon request, we will provide reasonable proof of compliance with key controls, and we will allow you or your regulators to audit such controls. We agree to promptly notify you after discovering systems security breaches that may affect you or the Services, and we will reasonably cooperate with you and any applicable regulatory bodies to appropriately respond to a security incident.

 

INSURANCE

During the term of this Agreement, Capsilon will keep in force insurance policies with appropriate and adequate coverage, including but not limited to, workers compensation and employer’s liability, commercial general liability, and umbrella liability.

 

PUBLICITY

 

GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement shall be construed and enforced according to the laws of the State of California, without respect to its conflict of law principles. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order or other equitable remedy to preserve the status quo or prevent irreparable harm, the parties agree to attempt, after written notice of any dispute hereunder, in good faith to resolve any dispute, controversy or claim arising out of or relating to this Agreement promptly through negotiations between senior management of the parties. If senior management is unable to resolve the dispute in a mutually acceptable manner within seven (7) business days, then the parties may pursue their rights hereunder in any manner available to them.

 

Severability/Assignment

You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect. Your rights under this Agreement are not assignable or transferable. Capsilon will notify you in the event that this Agreement is assigned or in the event Capsilon changes significant subcontractors providing the Services.

 

Covenant Not To Compete

You agree that for three years after entering into this Agreement, you will not, on behalf of yourself or another, sell or provide a similar service and/or software to third parties in the United States, without the written consent of Capsilon.

 

* BY ACCESSING AND USING THE SOFTWARE, YOU, THE END USER AND/OR THE ACCOUNT HOLDER, ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE UNCONDITIONALLY TO BE BOUND BY ITS TERMS AND CONDITIONS.

 

 

 

 

Exhibit A

CAPSILON CORPORATION END USER LICENSE AGREEMENT

 

THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) IS A LEGAL AND BINDING CONTRACT BETWEEN YOU, THE END USER, AND CAPSILON CORPORATION, A DELAWARE CORPORATION (“CAPSILON”). PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING AND USING THE SOFTWARE, YOU INDICATE YOUR ACCEPTANCE OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY DISCONTINUE YOUR USE OF THE SOFTWARE.

 

  1. BACKGROUND

1.1 Capsilon owns all right, title, and interest in and to certain software that offers to end users a fully-automated Web-based document management solution (the “Software”).

1.2 The Software is being contracted to you (the “Licensee”) by an authorized reseller (“Reseller”) of Capsilon who will act as the sole interface between Capsilon and Licensee for the term of this Agreement.

1.3 The Software is provided to licensees on a “software as a service” (SaaS) basis, and Licensee’s authorized users will be able to access the Software remotely through an Internet browser on a computer connected to the Internet. “Services” means the services and/or facilities that Capsilon and its Resellers provides to Licensee, for example by subscription or by means of an Capsilon and its Resellers-branded Software.

 

  1. LICENSE GRANT. Capsilon hereby grants to Licensee a worldwide, nonexclusive, non-transferable license to access and use the Software, including any improvements, modifications, enhancements or other alterations to the Software that Capsilon, in its sole discretion, chooses to incorporate into the Software (“Improvements”) for the purposes of processing and managing the documentation regarding loans or similar transactions originated by Licensee (“Licensee Data”).

 

  1. TERMINATION

3.1 Termination for Breach. Capsilon may terminate this Agreement (a) immediately, should Licensee breach Section 4.3 or 5 of this Agreement, or (b) should Licensee commit any other breach in the performance of its obligations under this Agreement, which breach continues uncured for more than thirty (30) days after Licensee receives written notice thereof from Capsilon specifying the nature of the breach.

3.2 Effect of Termination. Upon termination of this Agreement for any reason (other than for breach of Section 4.3 or 5 of this Agreement), Licensee will be entitled to continue to access and use the Software for a period of thirty (30) days in order to accomplish any wind-down. No new Licensee Data will be added during such wind-down period, but Licensee will continue to have the right to review and manipulate, remove, and download any Licensee Data that was available as of the effective date of termination.

 

  1. USAGE, OWNERSHIP AND RESTRICTIONS

4.1 Ownership. Capsilon owns all right, title and interest in the Software and all Improvements, including all copyrights and all other intellectual property therein.

4.2 Reservation of Rights. All rights not expressly granted to Licensee herein are reserved by Capsilon.

4.3 Restrictions. To the maximum extent permitted by law, Licensee will not: (a) modify, reverse engineer, decompile, disassemble or attempt to derive the source code of the Software; (b) rent, lease, loan, sell, sublicense, distribute, transmit assign or otherwise transfer its rights to use the Software to any third party; (c) make any copy of or otherwise reproduce the Software or any portion thereof, except as expressly authorized by Capsilon or as may be incidentally made as necessary in connection with Licensee’s access to and use of the Software; or (d) participating in or supporting any security breaches to the systems such as hacking, DOS, or viruses.

4.4 Compliance with Laws. Licensee shall have sole responsibility for securing all necessary permissions and clearances with respect to the Licensee Data and for ensuring that Licensee’s use of the Software to access, manage and manipulate the Licensee Data complies with any and all laws, rules, and regulations applicable thereto, including (but not limited to) those concerning any privacy rights of Licensee’s customers. Licensee shall comply with all applicable laws, regulations, privacy guidelines and applicable agreements governing the collection and use of personally identifiable information, including without limitation the Gramm-Leach-Bliley Act (collectively, the “Privacy Rules”). Licensee shall, at Licensee’s expense, defend, indemnify, and hold harmless Capsilon, its officers, directors and employees from and against any and all liabilities, claims, causes of action, suits and damages, including reasonable attorneys’ fees and expenses arising out of or related to Licensee’s non-compliance with any of the Privacy Rules.

4.5 Safeguard of Information. Licensee will take all reasonable steps to safeguard all login and password information, so as to ensure that no unauthorized person will have access to the Software, and that no persons authorized to have access will make any unauthorized use thereof. Licensee will promptly report to Capsilon any unauthorized use of the Software of which Licensee becomes aware and will take such further steps as may reasonably be requested by Capsilon to prevent unauthorized use thereof.

4.6 US Government Restricted Rights. If Licensee is the United States Government or is acquiring the right to access and use the Software on behalf of the United States Government, then the United States Government agrees that: (a) if the right to access and use the Software is acquired by or supplied to the Department of Defense (“DOD”), the Software shall be classified as “Commercial Computer Software” and the government is acquiring only “restricted rights” in the Software, as defined in Clause 252.227-7013(c)(1) of the DFARS; (b) for any part of the United States Government other than DOD, the government’s rights in the Software will be as defined in Clause 52.227-19(c)(2) of the FAR or, for NASA, in Clause 18- 52.227-86(d) of the NASA Supplement to the FAR.

4.7 Folder Usage and Restrictions. The use of the Software by Licensee requires a creation by the Licensee of electronic folders, with each folder housing a separate batch of Licensee Data (i.e., each separate loan or other transaction for which a Licensee uses the Software requires a separate electronic folder). Licensee is restricted from storing loan data for multiple loans or transactions in the same electronic folder. A folder becomes an “Activated Folder” immediately upon the placement into such folder by Licensee of the first item of Licensee Data. All Licensee Data will be stored in such folder for a limited time-period. Licensee will be charged for each Activated Folder, and Licensee Data will be stored in such folder for a limited time-period, in accordance to the terms and conditions of the service agreement with the Reseller.

4.8 General Practices Regarding Use, Storage and Service Access Licensee acknowledges that Capsilon and its Resellers may establish from time to time general practices and limits concerning use of the Service, including without limitation, establishing the maximum amount of storage space Licensee have on the Service at any time, as well as limiting the number of times (and the maximum duration for which) Licensee may access the Service in a given period of time. Licensee agrees that Capsilon and its Resellers has no responsibility or liability for the deletion or failure to store any messages and other communications or other Licensee Data maintained or transmitted by the Service. As a condition of use for this Service, Licensee agree that, in the event of an error with Capsilon and its Resellers Service, a Service technician shall be permitted to access Licensee Data as necessary to resolve the problem. Licensee acknowledges that Capsilon and its Resellers reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

4.9 No Resale of the Service. Licensee agrees not to copy, sell, resell, rent or sublicense (including offering the Service to third parties on an applications service provider or time-sharing basis), lease, loan, redistribute, or create a derivative work of any portion of the Service, use of the Service, or access to the Service. Licensee agrees not to access the Service by any means other than through the interface that is provided by Capsilon for use in accessing the Service.

4.10 Responsibility for Licensee Data. Licensee understand that all Licensee Data, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such Licensee Data originated. This means that Licensee, and not Capsilon and its Resellers, are entirely responsible for all Licensee Data that Licensee upload or otherwise transmit via the Services. Capsilon and its Resellers does not control the Licensee Data uploaded or otherwise transmitted by Licensee or other customers via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Licensee Data.

4.11 Other Conduct. Licensee agree to not use the Services to: (a) upload or otherwise transmit any Licensee Data or domain name that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity, including, but not limited to, any Capsilon and its Reseller representative, or misrepresent Capsilon and its Resellers affiliation with any person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Licensee Data transmitted through the Services; (e) upload or otherwise transmit any Licensee Data that Licensee do not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (f) upload or otherwise transmit any Licensee Data or domain name that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person; (g) upload or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation, except in those areas of the Services that may be designated for such purpose; (h) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (i) interfere with or disrupt the Services or servers or networks connected to the Services; (j) violate any applicable law or regulation, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission and any rules of any securities exchange, and laws regarding the export of technical data; (k) incite or provide instructional information about illegal activities; or (l) conduct raffles, contests, lotteries or sweepstakes, except in those areas of the Services that may be designated for such purpose.

 

  1. CONFIDENTIALITY

5.1 Capsilon Confidential Information. Licensee will not disclose to any third party the Software or any portion thereof, the terms of this Agreement, any technical, product or business information of Capsilon, or any information that Capsilon identifies as confidential (collectively, “Confidential Information”), without the prior written consent of Capsilon. Licensee will take all reasonable measures to maintain the confidentiality of all Confidential Information in its possession or control, which in no event will be less than the measures that Licensee employs to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, Licensee shall not be required to treat as confidential any information that Licensee can demonstrate (a) was in its possession or known to it prior to receipt from Capsilon; (b) was publicly available at the time of receipt from Capsilon, or later became publicly available through no act or omission of Licensee; or (c) was or later became lawfully available to Licensee from a source other than Capsilon, which source was not under any obligation of confidentiality or nondisclosure.

5.2 Injunctive Relief Authorized. Licensee acknowledges and agrees that (a) the Confidential Information is of a special, unique, unusual, extraordinary and intellectual character; (b) the unauthorized use or disclosure of any Confidential Information would constitute a material breach of this Agreement; (c) the interests of Capsilon in and to the Confidential Information would be irreparably injured by the unauthorized use or disclosure of such information; and (d) money damages would not be sufficient to compensate Capsilon for any such unauthorized use or disclosure. Accordingly, Licensee agrees that, in addition to any other remedies available to Capsilon at law, in equity or under this Agreement, Capsilon shall be entitled to seek specific performance, injunctive relief and other equitable relief to prevent any actual or threatened use or disclosure of the Confidential Information.

5.3 Survival. The foregoing obligations of confidentiality shall survive any termination of this Agreement.

 

  1. LIMITED WARRANTY. Capsilon warrants that during the term of the Agreement the Software will substantially conform to those functional specifications or other written documentation provided by Capsilon when the Software is given normal, proper and intended usage in compliance with any user manuals or other written instructions provided by Capsilon or Reseller (if so authorized by Capsilon). In the event that the Software should fail to so conform during such term, Capsilon will investigate and use commercially reasonable efforts to remedy such nonconformance. THE FOREGOING REPRESENTS THE SOLE AND EXCLUSIVE WARRANTY PROVIDED FOR THE SOFTWARE, AND CAPSILON EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR A COURSE OF DEALINGS BETWEEN THE PARTIES. NO EMPLOYEE, AGENT, DEALER OR DISTRIBUTOR (INCLUDING WITHOUT LIMITATION THE PARTNER) IS AUTHORIZED TO MODIFY THIS LIMITED WARRANTY OR TO MAKE ANY ADDITIONAL WARRANTIES. Capsilon does not warrant that the functions contained in the Software will meet Licensee’s requirements or that the operation of the Software will be uninterrupted or error-free.

 

  1. INDEMNIFICATION AND LIMITATION OF LIABILITY

7.1 Indemnification. Licensee shall defend, indemnify and hold harmless Capsilon, and its employees, officers, directors, licensors and affiliates from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from Licensee’s breach of this Agreement, Licensee’s infringement of any third-party’s rights, (including, without limitation, infringement of any copyright, violation of any proprietary right and invasion of any privacy rights), or the use or misuse of the Software by Licensee or those accessing and using the Software on Licensee’s behalf. These obligations will survive any termination of this Agreement.

7.2 Limitation of Liability. LICENSEE IS SOLELY RESPONSIBLE FOR INPUTS INTO THE SOFTWARE, VERIFYING THE RESULTS OF THE USE OF THE SOFTWARE AND HOW THE OUTPUT FROM THE SOFTWARE IS USED BY LICENSEE. CAPSILON SHALL NOT BE RESPONSIBLE OR LIABLE TO LICENSEE OR ANY THIRD PARTY FOR THE RESULTS OR WORK PRODUCT OBTAINED FROM LICENSEE’S USE OF THE SOFTWARE. IN NO EVENT SHALL CAPSILON BE LIABLE OR OBLIGATED TO LICENSEE IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, CONSEQUENTIAL, INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST DATA OR PROGRAMS, BUSINESS INTERRUPTIONS, LOST PROFITS AND LOST REVENUE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF CAPSILON IS AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, CAPSILON SHALL NOT BE LIABLE TO LICENSEE IN AN AMOUNT IN THE AGGREGATE GREATER THAN THE AMOUNT RECEIVED BY CAPSILON RESULTING FROM LICENSEE’S USAGE OF THE SOFTWARE. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

 

  1. GENERAL. This Agreement embraces the full, complete understanding of the parties as to the subject matter hereof, and may not be altered or modified, except by written amendment or collateral agreement which expressly refers to this Agreement and which is duly executed by Capsilon’s and Licensee’s duly authorized representative. All prior representations, understandings and agreements regarding the subject matter hereof whether written or oral, expressed or implied, are superseded and shall be of no effect. In the event of conflicting provisions between this Agreement and a duly executed collateral agreement, the duly executed collateral agreement shall control. This Agreement shall be construed and governed in accordance with the laws of the state of California, excluding the application of its conflicts of law rules. Licensee irrevocably submits to the jurisdiction of any state or federal court sitting in San Francisco County, California, United States of America, in any action or proceeding brought to enforce or otherwise arising out of or relating to this Agreement. In the event of litigation between Licensee and Capsilon concerning the Software or any other item which is subject to this Agreement, the prevailing party in the litigation will be entitled to recover attorney fees and expenses from the other party. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. Licensee agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export law, restrictions or regulations. No waiver by Capsilon of any breach or default by you of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.

BY ACCESSING AND USING THE SOFTWARE, LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES UNCONDITIONALLY TO BE BOUND BY ITS TERMS AND CONDITIONS.