INTRODUCTION – ANYONE ORDERING OR USING THE SERVICES MUST READ THIS ENTIRE AGREEMENT
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 your employer or other third party, you represent that you have the authority to bind such employer or other third party and that the terms “you” and “your” shall refer to such employer or other third party. 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 or other third party 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 (the “Agreement”) as an End User. In such instances, if 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 not been authorized by the Account Holder to use the Services, you must not (and do not have the right to) access or use the Services.
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 “we”), to process and manage documentation (“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, herein by reference. Unless specified as a term applicable to only Account Holders, the terms “you” and “your” as used in this Agreement pertain to both Account Holders and each End User of the Services. In the event of a contradiction between the term of this Agreement and the End User Agreement as it pertains to End Users, the terms of the End User Agreement will govern. 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 in using the Services. The terms of this Agreement will cover any situation where the Account Holder uses and accesses the Services or the Account Holder permits an employee or third party to use and access the Services, even if that employee or third party 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.
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 access to the Site and the Services in the event that (a) any information provided by an Account Holder in the account registration process is, at any time, untrue, inaccurate or incomplete or (b) 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 concerning the Services. Capsilon will not be liable to the Account Holder or any End User resulting from Capsilon’s exercise of the foregoing rights. 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.
- Information collected to register Account Holders and End Users
Non-public personal information that Capsilon collects pertaining to Account Holders and End Users may be used and disclosed in the following ways:
- Used to create and administer the Account Holder’s account and End Users’ profile in using the Services.
- Used to fulfill requests, respond to inquiries, provide the Services, and complete transactions Account Holders and End Users have requested.
- Used to send Account Holders and End Users important information regarding the Services or Site, changes to our terms, conditions, and policies and/or other administrative information. Because this information may be important, Account Holders and End Users may not opt-out of receiving such communications.
- Used to inform Account Holders of services, promotions and programs that we believe may be of interest to them.
- Used to resolve problems or issues with the Services, Site or other End Users.
- For our internal business purposes, such as data analysis, audits, developing new products or services, enhancing our Site, improving our Services, identifying usage trends and determining the effectiveness of our promotional campaigns.
- Disclosed to our third party service providers who provide services such as website hosting, data analysis, payment and credit card processing, infrastructure provision, IT services, customer service, e-mail delivery services, and other similar services to enable them to provide services to us.
- Disclosed to an affiliate or other third party in the event of any reorganization, merger, sale, joint venture, assignment, transfer or other disposition of all or any portion of our business, assets or stock (including without limitation in connection with any bankruptcy or similar proceedings).
- Used and disclosed as we believe to be necessary or appropriate: (a) in any manner permitted under applicable law, including laws outside the country of residence of Account Holders and End Users; (b) to comply with legal process; (c) to respond to requests from public and government authorities, including public and government authorities outside the country of residence of Account Holders and End Users; (d) to enforce our terms and conditions; (e) to protect our operations, business and systems; (f) to protect our rights, privacy, safety or property, and/or that of other users of the Services and Site; and (g) to allow us to pursue available remedies or limit the damages that we may sustain.
- Information submitted by Account Holders and End Users 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 (or other similar report, as such reports are available) 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 the United States, including its back-up data and storage center. However, Capsilon’s development operations are located in India. With Account Holder’s 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 Services 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 Services if your account becomes 30 days or more 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 Services and thereafter request to access the Services 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 Services
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 limited 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, your account 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, provided that you have requested a longer Retrieval Period, Capsilon will cooperate with you to ensure a commercially reasonable 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.
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 during out standard support hours. 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.
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.
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, the Account Holder shall manage all passwords for the Services and any and all resets of such passwords that Account Holders provides to any of its employees, agents and/or other End Users of the Services. Account Holder 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. You shall hold harmless and indemnify and defend Capsilon for and against 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 your of any passwords provided to you for the Services.
Compliance with Laws
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.
Disclaimer of Warranties
EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, CAPSILON HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, ACCURACY, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. CAPSILON DOES NOT WARRANT THAT THE SERVICES OR SITE WILL MEET YOUR REQUIREMENTS, WILL BE ERROR-FREE OR SECURE, FREE OF VIRUSES OR SIMILAR COMPONENTS, OR WILL BE UNINTERRUPTED. CAPSILON DOES NOT WARRANT THAT THE CUSTOMER DATA OR ANY OTHER INFORMATION TRANSMITTED INTO THE SITE OR SERVICES WILL BE ACCURATE OR FREE OF ERRORS, THAT THE OPERATION OF THE SITE OR SERVICES WILL BE COMPLETELY SECURE, ERROR FREE OR UNINTERRUPTED, OR ALL ERRORS WILL BE CORRECTED. YOU ASSUME ALL RISK OF DELAYS OR INTERRUPTIONS IN ACCESS TO OR USE OF THE SITE AND SERVICES RESULTING FROM USE OF THE INTERNET AND/OR TELECOMMUNICATIONS TO ACCESS THE SITE AND SERVICES, AND CAPSILON SHALL HAVE NO LIABILITY FOR ANY SUCH DELAYS OR INTERRUPTIONS.
Limitation of Liability
IN NO EVENT WILL CAPSILON BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, REVENUE, BUSINESS, SAVINGS, DATA OR USE, OR THE COST OF SUBSTITUTE PROCUREMENT, EVEN IF CAPSILON OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, CAPSILON’S AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT, WHETHER BASED ON NELIGENCE, CONTRACT, TORT, INDEMNIFICATION, STRICT LIABILTIY OR OTHER THEORY, WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO CAPSILON UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH YOU NOTIFY CAPSILON OF THE CLAIM. 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. ADDITIONALLY, YOUR ACCESS TO THE SERVICES AND SITE 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.
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.
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 review our documentation pertaining to such controls. We agree to promptly notify you after discovering systems security breaches that result in material unauthorized access of Customer Data, and we will reasonably cooperate with you and any applicable regulatory bodies to appropriately respond to a security incident.
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.
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. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. 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; provided that any suit, action or proceeding arising out of or relating to this Agreement by a party shall be resolved by litigation exclusively in the state and federal courts located within San Francisco County in the State of California. The [arties hereby consent to the exclusive jurisdiction of such courts, will accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to them.
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.
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.
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.
1.1 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”) and is being licensed to you (“Licensee” or “you”).
1.2 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 provides to Licensee.
- 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”).
- TERMINATION AND SUSPENSION
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. Additionally, Capsilon may terminate this Agreement and to refuse, restrict or discontinue access to the Software and the Services upon any breach of this Agreement by you.
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 download and save the Licensee Data. 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.
- 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, resell, lease (including offering the Software to third parties on an applications service provider or time-sharing basis), 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 related to the Services or any portion thereof, except as expressly authorized; (d) modify or create any derivative work of the Software or Service, or (e) participate in or support any security breaches to Capsilon’s 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 with the subscriptions for the Software purchased by Licensee.
4.8 General Practices Regarding Use, Storage and Service Access. Licensee acknowledges 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 Licensee has on the Services at any time, as well as limiting the number of times (and the maximum duration for which) Licensee may access the Services in a given period of time. Licensee agrees that Capsilon 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 Services. As a condition of use for this Services, Licensee agree that, in the event of an error with the Services, a Capsilon technician shall be permitted to access Licensee Data as necessary to resolve the problem. Licensee acknowledges that Capsilon 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 Services. Licensee agrees not to copy, sell, resell, rent or sublicense (including offering the Software or Services 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 Services, use of the Services, or access to the Services. Licensee agrees not to access the Services by any means other than through the interface that is provided by Capsilon for use in accessing the Services.
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, is entirely responsible for all Licensee Data that Licensee upload or otherwise transmit via the Services. Capsilon 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 agrees 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 representative, or misrepresent Capsilon’s 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.
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.
- 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. 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 HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, ACCURACY, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. CAPSILON DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, WILL BE ERROR-FREE OR SECURE, FREE OF VIRUSES OR SIMILAR COMPONENTS, OR WILL BE UNINTERRUPTED. CAPSILON DOES NOT WARRANT THAT THE LICENSEE DATA OR ANY OTHER INFORMATION TRANSMITTED INTO THE SERVICES OR SOFTWARE WILL BE ACCURATE OR FREE OF ERRORS, THAT THE OPERATION OF THE SERVICES OR SOFTWARE WILL BE COMPLETELY SECURE, ERROR FREE OR UNINTERRUPTED, OR ALL ERRORS WILL BE CORRECTED. LICENSEE ASSUMES ALL RISK OF DELAYS OR INTERRUPTIONS IN ACCESS TO OR USE OF THE SERVICES AND SOFTWARE RESULTING FROM USE OF THE INTERNET AND/OR TELECOMMUNICATIONS TO ACCESS THE SERVICES AND SOFTWARE, AND CAPSILON SHALL HAVE NO LIABILITY FOR ANY SUCH DELAYS OR INTERRUPTIONS..
- 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 WILL CAPSILON BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, REVENUE, BUSINESS, SAVINGS, DATA OR USE, OR THE COST OF SUBSTITUTE PROCUREMENT, EVEN IF CAPSILON OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, CAPSILON’S AGGREGATE LIABILITY TO LICENSEE UNDER THIS AGREEMENT, WHETHER BASED ON NELIGENCE, CONTRACT, TORT, INDEMNIFICATION, STRICT LIABILTIY OR OTHER THEORY, WILL NOT EXCEED THE AMOUNTS PAID BY LICENSEE TO CAPSILON FOR LICENSEE’S USE OF THE SERVICES AND SOFTWARE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH LICENSEE NOTIFIES CAPSILON OF THE CLAIM. 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. ADDITIONALLY, LICENSEE’S ACCESS TO THE SERVICES AND SOFTWARE 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.
- 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. 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.