Terms of Service.
Terms of Service
Terms of Service
Last updated: 26 October, 2020
These Terms of Service (the “Terms”) is between Wunder LLC as defined below (hereinafter referred to as “Captivate”) and you, being a legal entity or individual visiting our Website, using our Services and/or placing an order with us (“Customer” or “you”).
These Terms shall come into effect between Captivate and you on the date of:
(a) Customer’s initial access to any Service through any online provisioning, registration or order process; or
(b) the effective date of the first Order Form referencing these Terms (hereinafter referred to as the “Effective Date”).
By visiting and browsing our Website, using any of our Services and/or placing an order with us, you constitute an agreement to these Terms, including, without limitation, mandatory arbitration provisions that require the use of arbitration to resolve disputes under these Terms, rather than jury trials. If you do not agree to be bound by these Terms, you shall not access this Website or use our Services. Please read these Terms carefully.
In these Terms the terms with capital letters have the following meaning:
“Captivate” means Wunder LLC, having its registered business address at 6599 Glen Arbor Way, Naples, FL acting under the brand name of “Captivate”.
“Captivate App” means any mobile or online application included in the Service that is made available by Captivate.
“Customer Data” means any and all documents, data and other information that relate to the Customer and/or its Customer’s end users, provided that such documents, data and other information can legally be provided by the Customer directly, or from third party websites, or by Customer’s end users (logs, messages, other).
“Documentation” means the technical user documentation provided by Captivate in connection with the Services.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions related to data privacy and data transfer, international communications, and the transfer of technical or personal data.
“Permitted User” means Customer, or an employee or contractor of Customer or its affiliate who is authorized to access the Service.
“Services” means the service being provided by Captivate through various methods which include the Website, apps and other lawful means.
“Terms” means these Terms of Service as amended from time to time.
“Third-Party Platform” means any third-party software, data sources, software-as-a-service, or other products or services not directly provided by Captivate, but that integrate with Captivate.
“Website” means the website https://letscaptivate.com, including its subdomains, as well as any other interface such as mobile phone applications owned and operated by Captivate.
Changes to these Terms
2. Changes to these Terms
We may review and change these Terms at any time. Unless otherwise stated, such changes are effective immediately upon posting and/or upon renewal of Customer’s current Subscription Term or entry into a new Order Form. When changes come into effect, the revised Terms shall supersede the previous version of the Terms.
We may notify you by email, via Customer’s account or other available means, if any change comes into effect. It is your responsibility to periodically check these terms for changes, referencing the last updated date. You may cancel your Subscription before the next Subscription Term.
If the Subscription is cancelled before the next Subscription Term, you are entitled to have a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term. Your use of the Services after the revised Terms come into effect shall constitute an agreement to the revised Terms.
3. Our Services
Captivate provides messaging software-as-a-service solutions offered on or through the Website or Captivate App. With the use of our Services Customer receives an effective platform for communications with its end users and is able to provide a dashboard for accessing and managing Customer Data regarding such end users. The full description of our Services shall be given on the Website and/or in the Order Form.
Our Services are provided on a subscription basis for a term indicated in the relevant Order Form (“Subscription Term“).
The Customer’s access to the Services can be given as a trial subscription to the Service (a “Trial Subscription“).
The use of the Services during a Trial Subscription is given for a specific term. Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the Services.
The Customer acknowledges and agrees that the Trial Subscription is limited to certain functionality and does not include all tools and features available to paid subscription users. If Customer fails to purchase paid subscription, these Terms and Customer’s right to access and use the Services will terminate at the end of the Trial Subscription. Captivate has the right to terminate a Trial Subscription at any time for any reason without any liability on its part.
4. Use of the Services
Captivate grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term or Trial Subscription to use the Services subject to full compliance with these Terms and any other agreements between the Customer and Captivate. Each Customer agrees:
If Customer violates these Terms, Captivate shall be entitled to terminate these Terms with Customer as provided hereunder.
5. Customer Data
Customer owns all right, title and interest (including any and all intellectual property rights) in the Customer Data. Customer represents and warrants to Captivate that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as described in these Terms.
Customer shall be solely responsible for obtaining all necessary consents and permissions from end users.
Customer is obliged to ensure that Customer Data will not infringe any laws, third party intellectual property, privacy or other rights.
Customer hereby agrees for as long as these Terms are valid between the parties to grant Captivate with a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.
Captivate shall not be an owner or operator of the Customer Data and is not responsible for the accuracy, applicability and legality of the Customer Data. Customer shall be solely responsible for any Customer Data submitted to the Services by its end users.
Aggregated Anonymous Content
6. Aggregated Anonymous Content
Unless otherwise provided herein, Customer agrees that Captivate may obtain and aggregate anonymous technical and other data about Customer’s use of the Services.
Such data is anonymous and is non-personally identifiable data. Captivate will use such anonymous data for general purposes, such as technical improvements, statistical and marketing analysis.
We use certain technologies and commercially reasonable efforts to ensure the confidentiality of Customer Data.
While we strive to use commercially acceptable means to protect Customer Data, we cannot and do not guarantee absolute security of Customer Data and shall not be responsible for any errors in transmission, unauthorized third-party access or other causes beyond our reasonable control.
8. Third-Party Service
Our Website may contain links to Third-Party Websites, which enables Captivate to provide the Customer with certain Services. Customer may be required to input credentials in order for the Services to access and receive relevant information from such Third-Party Websites.
Any use of Third-Party Websites is subject to the terms and conditions and privacy policies of such third parties. By enabling use of the Services with any Third-Party Website, Customer allows Captivate to access Customer’s accounts with such Third-Party Website for the purposes described in these Terms. Captivate does not own or control Third-Party Websites and shall not be responsible for Third-Party Website or any Customer Data exported to a Third-Party Website.
Intellectual Property Rights
9. Intellectual Property Rights
The intellectual property contained in the Website and Services (and any derivative works based on them) is confidential and/or proprietary information of Captivate, our suppliers or licensors and is protected by copyright and other intellectual property rights. All title, ownership and intellectual property rights on the Website and Services shall remain with Captivate, our suppliers or licensors, as the case may be. All rights not otherwise claimed under the Terms or by Captivate are hereby reserved.
You further acknowledge and agree that the Website and Services are protected by copyrights, trademarks (whether registered or being under registration), service marks, patents or other proprietary rights and laws. Except as expressly permitted by applicable law or as authorized by Captivate or the applicable licensor, you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, publicly perform or create derivative works based on the Services or the Website, in whole or in part. Without limiting the foregoing, any reproduction, redistribution, reverse engineering or decompilation of the Services or the Website is expressly prohibited by law, and may result in severe civil and criminal penalties.
By submitting any feedback or other content (“User Content”) in connection with our Services, you grant Captivate perpetual, royalty-free, exclusive, transferable, and irrevocable rights to use, view, copy, adapt, modify, manipulate, create derivative works and otherwise exploit submitted User Content, including your name and/or your company name, to enable us to operate the Services as described in these Terms, to deliver a technology solution and/or to use it for marketing purposes.
Each party (including Customer’s Permitted Users) shall treat as strictly confidential and shall not disclose to any other person or entity any information received from other party which is marked by such disclosing party as confidential (the “Confidential Information”). Such Confidential Information can be transferred or obtained from disclosing party orally, visually, electronically or by any other means.
The Confidential Information shall also include, without limitation, all forms and types of financial, business, technical, economic, competitively sensitive information, personal information of the disclosing party, engineering service plans, proposals, patterns, plans, compilations, discoveries, ideas, concepts, know-how, techniques, formulas, blueprints (including, without limitation, diagrams, explanation, examples, analogies), designs, prototypes, processes, procedures, codes, software, marketing plans, financial plans, financial analysis, business plans, strategies, or names of customers or any other documentation, password and server logins, data or material related to disclosing party’s business, technologies.
The recipient’s obligations shall not apply with respect to Confidential Information which the recipient can prove: (a) was known to recipient before receipt from a disclosing party; (b) is or becomes a matter of public knowledge through no fault of recipient; (c) is rightfully received by recipient from a third party which owes no obligation of confidentiality to the disclosing party; or (d) is independently developed by the recipient.
If requested by Captivate, Customer agrees to enter into a non-disclosure agreement.
11. Our Fees
11.1 Fee Policy.
The full description and our fees and payment is given in Fee Policy which shall be an integral part of these Terms. Our Fee Policy can be accessed through https://letscaptivate.com/pricing.
All fees for Services as well as payment due date shall be indicated in the applicable Order Form. Captivate is entitled to increase the fee for its Service as it deems necessary and as is set forth in this agreement or in its Fee Policy. Customer represents and warrants to have the legal right to use the payment method utilized in connection with any transaction. By submitting the payment information, Customer grants to Captivate the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by Customer.
After placing an order, Captivate sends Customer an email acknowledging the order receipt. Captivate reserves the right to refuse orders for any reason. Once Captivate confirms the order, the Order Form is sent to Customer for execution.
All fees payable by the Customer are non-refundable unless otherwise stated in these Terms.
All fees are exclusive of taxes, duties and other charges. Customer shall be responsible for payment of all taxes, duties and other charges resulting from any payments made hereunder.
Captivate reserves the right to suspend or terminate Customer’s account free from any liability on its part if Customer’s account is overdue for more than thirty (30) days or if Customer otherwise violates these Terms.
11.2 Credit Card Payments.
For Services bought using a credit card, debit card or other payment card (“Credit Card”) the following applies:
1. Recurring Payment Authorization.
Customer hereby authorizes Captivate to automatically charge Customer’s Credit Card for all fees accrued as of that date. The date for payment is based on the agreed to billing cycle. Customer acknowledges and agrees that the amount charged for each billing cycle may change according to Customer’s use of the Services and might include subscription fees for the current billing period and overage charges for the prior billing cycle.
2. Foreign Transaction Fees.
Customer acknowledges that certain Credit Cards may charge a foreign transaction fee or other charges to be paid by Customer, not by Captivate.
3. Failed Payments.
For any payments that could not be processed, either due to insufficient funds, errors, Credit Card expirations or otherwise, Customer remains responsible for any amounts not yet settled. Captivate either (i) invoices Customer directly for the open amount, (ii) re-tries billing the Credit Card once it has been updated by Customer or (iii) terminates the Service and thereby this Agreement.
4. Credit Card Information.
Customer may alter or update the Credit Card details via the designated area inside the Services at any time.
5. Termination of Recurring Charges.
Customer may terminate the Subscription by sending a notice of termination to support [at] letscaptivate.com or by terminating via the designated area inside the Services. The effective date for such termination will be at the end of the current subscription cycle. No proration will take effect, as Customer will retain rights to access the Service until the end of the current billing cycle. Customer’s right to access and use the Services will terminate at the end of the cycle. In case of a Trial User ending his subscription prior to start of an official payment cycle, a Customer’s Credit Card will not be charged.
6. Open Payments.
Upon any termination or expiration of the Subscription Term, Captivate will charge or invoice a Customer’s Credit Card for any open payments for use of the Services during the Subscription Term. Customer’s Credit Card will not be charged any additional fees after termination once the account has been settled.
Term, Termination & Suspension
12. Term, Termination & Suspension
12.1 Terms and Termination.
These Terms enter into force on the Effective Date and expires after an end of the Subscription Term unless the Subscription Term is renewed.
Each party may terminate these Terms with any reason with prior thirty (30) days written notice unless otherwise stated in the Order Form.
Captivate shall be entitled to terminate these Terms with immediate written notice, if Customer violates these Terms.
Upon termination of these Terms for any reason Customer agrees to immediately stop using any Services. Upon Captivate’s request, Customer shall immediately delete or return all copies of Documentation, as well as passwords or access codes provided by Captivate.
Captivate shall be entitled to delete Customer Data from any Service after termination of these Terms or expiration of Customer’s applicable Subscription Term. Captivate expressly disclaims all obligations with respect to storage.
12.2 Suspension of Service.
If a Customer’s account is thirty (30) days or more overdue, Captivate, at its sole discretion, may suspend Customer’s access to the Service without liability to Customer until such amounts are paid in its entirety.
Captivate will not be held liable for any loss or damages that arise from such a Suspension.
No Warranties, Limitation of Liability
13. No Warranties, Limitation of Liability
You acknowledge and agree that all access and use of the Website and Services is at your own risk. Without prejudice to the generality of the foregoing, we will not be liable to you if the Website or Services are inaccessible or unavailable in whole or in part due to periods of downtime, or for any reason beyond our reasonable control, or because we are carrying out maintenance, upgrades, developments or the like, unless otherwise provided in our Service Level Agreement.
All Services are provided “as is” and “as available”. Under no circumstances shall we be liable for any errors or omissions in the Services. Captivate makes no representations or warranties of any kind, either express or implied, as to the operation of this Website or the Services. Captivate does not warrant or make any representations regarding suitability, availability, accuracy, reliability, completeness, timeliness, or regulatory compliance of any material or information of any kind contained within the Services. We cannot ensure that the Services are accurate, correct, reliable, exhaustive or complete on every subject.
Without the prejudice of generality of foregoing, in no event shall our liability exceed the amount actually paid by Customer to Captivate during the prior twelve (12) months under these Terms.
Indemnification by Customer
14. Indemnification by Customer
Customer will indemnify, defend and hold harmless Captivate from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of these Terms.
This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Captivate at Customer’s expense.
Notwithstanding the foregoing sentence, (a) Captivate may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without Captivate ‘s prior written consent, unless the settlement fully and unconditionally releases Captivate and does not require Captivate to pay any amount, take any action, or admit any liability to Customer or any other party, and with the express guarantee by Customer that Customer will hold Captivate harmless.
15. Customer Support
The Services are available subject to Captivate’s Service Level Agreement. (“SLA”).
16. Professional Services
Customer may request professional consulting services.
All terms and conditions as well as scope and fees for the professional consulting services shall be agreed separately between the parties in a Statement of Work.
The Statement of Work shall be an integral part of these Terms.
Captivate may request and Customer agrees on issuance of a joint press release announcing the parties’ relationship.
The timing and content of such press release will be subject to the approval of each Party, which approval may not be unreasonably withheld.
Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer’s name and logo on Captivate’s Website and promotional materials.
Customer agrees that Captivate may indicate that Customer is a customer of Captivate.
18. General Terms
Customer may not assign these Terms, or any of its rights or obligations hereunder to any third party unless otherwise agree with Captivate in writing. Captivate may freely assign these Terms and other agreements executed with Customer without Customer’s consent. Any attempted assignment or transfer in violation of this subsection will be null and will not have any legal effect.
If any provision of these Terms is deemed to be illegal or unenforceable by a court of competent jurisdiction, the enforceability or effectiveness of the remainder of these Terms will not be affected, and these Terms will be enforceable without reference to the unenforceable provision.
18.3 Governing Law and Dispute Resolution.
In the event of any dispute arising out of or in connection with these Terms, the representatives of the Parties shall seek to negotiate a resolution within 30 days of such dispute arising. If the Parties are unable to resolve the matter within 30 days from the dispute arising, the dispute will be referred to arbitration in the state of Florida as set forth below which shall have exclusive jurisdiction as to the dispute and enforcement.
To the extent state law is applicable, the arbitrator shall apply the substantive law of the state of Florida. The parties and arbitrator shall keep in full confidence the fact that the dispute is initiated and any and all aspects of the arbitration. By entering into these Terms, each party waives the right to trial by jury or to participate in a class action. The arbitration proceeding shall take place in Florida, using the English language.
The arbitrator shall be selected by joint agreement of the parties. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with the arbitration services, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties and enforceable in any court.
These Terms must be construed as if it was jointly written by both parties. Both Customer and Captivate agree that each may bring or participate in claims against the other only in their respective individual capacities, and not as a plaintiff or class member in any purported class. No arbitration or claim under these Terms shall be joined to any other arbitration or claim, including any arbitration or claim involving any other current or former user of the Services, and no class arbitration proceedings shall be permitted. In the event of any dispute concerning the validity or enforceability of this provision, such claim must be adjudicated by a court and not by an arbitrator.
Notwithstanding the above provisions, Captivate may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
All notices and other communications given or made pursuant to these Terms will be in writing and will be deemed effectively delivered: (a) if sent by certified or registered mail, on the date received; or (b) if sent by courier, on the date delivered. All notices and communications will be sent to the parties at the addresses set forth on the relevant Order Form. Either party may change its contact information by delivering written notice to the other party in the manner provided above.
18.5 Amendments and No Waiver.
These Terms may not be modified, amended or supplemented except by a separate written document executed by both parties. No term and conditions of these Terms shall be deemed waived and no breach or default excused unless such waiver or excuse shall be in writing and signed by the party issuing the same.
18.6 Entire Agreement.
18.7 Force Majeure.
Captivate shall not be deemed to be in default of any provision hereof or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, civil or military authority, civil disturbance, war, terrorism, strikes, fires, other catastrophes, power or telecommunications failure or any other cause beyond its reasonable control.
Captivate may subcontract any of the Services without Customer’s prior written consent, provided that Captivate shall remain liable for the performance of Services by Captivate and/or its subcontractors. Captivate shall ensure that its subcontractors comply with the terms and conditions of these Terms.
18.9 Independent Contractors.
No joint venture, partnership, employment, or agency relationship exists between Customer and Captivate as a result of these Terms. Under these Terms both parties shall be independent contractors. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
18.10 Export Law.
Each Customer represents and warrants that you are not: (a) a citizen or resident of a geographic area in which access to or use of the Website or Services is prohibited by applicable law; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual, or an individual employed by or associated with an entity, identified on U.S. denied persons or entity list. Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction.
18.11 Government End Users.
Elements of the Services are commercial computer software and were developed fully at private expense. The Services cannot be licensed or otherwise used by any agency, department or other entity of the United States Government.
These Terms may be executed in several copies and each copy shall be deemed an original of these Terms. All copies of these Terms together will be considered as one and the same agreement.