These Terms and Conditions are a legal agreement ("Agreement" or "Contract") between Capptivation, Inc. (also as "We", "Us" and "Our") and you, the "User" (also as "I" and "Your") of the App and governs access and use of it. Collectively, Capptivation, Inc. and User are the "Parties".
READ THESE TERMS AND CONDITIONS CAREFULLY. THIS AGREEMENT CONTAINS IMPORTANT TERMS GOVERNING THE SERVICES PROVIDED BY Capptivation REGARDING THE APP, YOUR RESPONSIBILITIES AND Capptivation INC.'S OBLIGATIONS, AND INCLUDES LIMITS ON Capptivation INC.'S LIABILITY, INDEMNITY AND OTHER IMPORTANT CLAUSES.
The App is a smartphone application with information about sexual misconduct, mental health, drug alcohol addiction, sexual health, and more. The App helps connect college and high school students in the United States with resources, both on campus and off-campus that may be able to offer assistance. When User uses the App on a communications network, cellular network, or other network or system having charges for data transfer and or communications, the provider's rates will apply as charges to User.
The App SHOULD NOT be relied upon for emergency services and is in no way designed to serve as an alternative to the emergency services provided by 911 telephone service. If User has an emergency, time-sensitive crime information, medical information or other important information communicate this information with 911 emergency telephone service. By downloading and activating the App User is confirming that User is of adult age. The App is intended for users 18 years or over.
User Agrees that no joint venture, partnership, employment, or agency relationship exists between User and Capptivation, Inc. as a result of these Terms and Conditions or your use of the App. Capptivation Inc.'s performance of these Terms and Conditions is subject to existing laws and legal process, and nothing contained in these Terms and Conditions is in derogation of Capptivation Inc.'s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the App or information provided to or gathered by Capptivation, Inc. with respect to such use.
The information provided in the App is free of charge and for informational purposes only and does not create a business or professional services relationship between User and Capptivation, Inc.
Unless otherwise specified herein, these Terms and Conditions constitutes the entire agreement between User and Capptivation, Inc. (the "Parties", each respectively a "Party") with respect to the App and it supersedes any prior or contemporaneous communications and proposals, whether electronic, oral or written, between the User and Capptivation, Inc. with respect to the App. User confirms that User has not entered into this Contract on the basis of any representation that is not expressly incorporated into this Contract. User acknowledge that User is not relying on Capptivation, Inc. and or the App for advice. Capptivation, Inc. is not bound by any representation, promise, condition, inducement or warranty, express or implied, that is not included in writing in this contract.
By accepting these Terms and Conditions, User has accepted a legally enforceable online contract, and additionally has agreed upon the terms and conditions set forth in these "Terms and Conditions" governing your transaction with Capptivation, Inc. and use of the App.
Should there arise any conflict between this Agreement and User's download request, purchase order or other document, these "Terms and Conditions" will govern, whether any such document is prior to or subsequent to this Agreement. The provisions in this Agreement are for the sole benefit of User and Capptivation, Inc. and the assigns of Capptivation, Inc. and shall not inure to the benefit of any other person either as a third party beneficiary or otherwise.
All information, data, text, software, music, sound, photographs, graphics, video, messages, or any other materials whatsoever delivered to User by the App is referred to collectively as \"Content.\" Under no circumstances will Capptivation, Inc. be liable in any way for any Content, including, but not limited to, liability for any errors or omissions in any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the App.
The Parties hereto agree that the App, once downloaded, is in the exclusive possession and control of the User, and it is User's sole responsibility to test the operation of the App and confirm it is operational. The App will not function without proper phone, communications and or network services. The User is solely responsible for having compatible and active phone and or communications services. The App will also not function without sufficient battery power for a communications device or without an active signal. The User is solely responsible for having a functioning device and sufficient communications signal and service. User is obligated to pay your telephone, electricity and other bills timely and to ensure that your telephone and electricity is such that the App is not affected.
User Agrees to use reasonable efforts to take precautions against the contamination of your computer systems and files by software viruses, worms or other malicious agents. At a minimum, such precautions shall include the installation, upgrading and use of commercial virus detection software to scan communications, files, data and documents transmitted to and or by User using the App.
In the event the User utilizes the App, the User shall be obligated for and agrees to pay any costs and expenses incurred including, but not limited to, response, police, fire, ambulance, physician or other medical assistance in obtaining assistance, or cost whatsoever incurred as a result of the User's use of the App.
By using the App User represents, affirms and declares that: (1) all business User conduct through the App is lawful and that User is subject to civil and criminal penalties should User violate those laws and regulations which may apply to such business; and (2) User acknowledge that any information provided by Capptivation, Inc. to User in the course of performing the Services may be derived from private or government agency databases and other information sources with respect to which Capptivation, Inc. has no control, and that Capptivation shall have no liability whatsoever with respect to such information, including, without limitation, in the event any such information is inaccurate, out of date, contains errors or omissions, or is otherwise incorrect in any way.
As a condition of your use of the App, User warrants to Capptivation, Inc. that User will not use the App for any purpose that is unlawful or prohibited by these Terms of Conditions. User may not use the App in any manner which could damage, disable, overburden, or impair the App or interfere with any other party's use and enjoyment of the App. User Agrees to use the App only to communicate, post, send and receive messages and material that are proper and related to the App. User shall not engage in any illegal or abusive behavior by use of the App. User has no right to sublicense or sell the App to any party. User may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the App and or application or services. User may not modify, adapt or hack the App or modify another software and or application so as to falsely imply that it is associated with the App or Capptivation, Inc.
The App services or related materials may not be sold, rented or otherwise commercialized with third parties. User agrees not to sell, resell, or offer for any commercial purposes, any portion of the App, or access to the App. Any use of any of the materials available through the App other than for private, personal, non-commercial viewing purposes is strictly prohibited.
Capptivation, Inc. reserves the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Capptivation, Inc. reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request.
User agrees not to reverse engineer, disassemble, decompile, convert into human-readable format, or otherwise attempt to derive the source code of any software included in or related to the App. User agrees not to copy any ideas, features, functions or graphics of or related to the App. Capptivation, Inc. may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms and Conditions.
Capptivation, Inc. reserves the sole discretion to deny, revoke, or otherwise restrict the access privileges of any user who at any time fails to comply with these Terms and Conditions.
Capptivation, Inc. is entitled to transfer all of its rights and obligations under this Agreement to another party without your consent and User hereby accepts and approves any such transfer of rights and obligations. In the event of such transfer, Capptivation Inc.'s rights and obligations to User under this Agreement shall automatically be discharged. We are at all times entitled to engage contractors or sub-contractors to carry out all or any of our obligations under this Agreement. This Agreement is not assignable by User. This Agreement or any portion thereof is assignable by Capptivation in its sole discretion. User is not entitled to cede, delegate or otherwise transfer your rights and obligations under this Agreement to any other party.
Capptivation, Inc. reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Capptivation Inc.'s sole discretion.
We may use aggregated and anonymized information and statistics for the purposes of analyzing use of Our software and or application and Service and may provide such aggregated and anonymized information to third parties. These statistics will not include information that can be used to identify any individual.
User agrees that we can use the User's communications device and other information to let User know about other activities including goods and services offered by Capptivation, Inc. or third parties which We think may be of interest to User.
Links within the App may lead to a web site or services not operated by Capptivation, Inc.. Capptivation Inc. exercises no control whatsoever over such other software and or applications and web-based resources and information and is not responsible or liable for the availability thereof or the content, advertising, products or other materials thereon. No judgment or warranty is made with respect to such other services and Capptivation, Inc. takes no responsibility for such other services. A link to another site or service is not an endorsement of that site or service. Any use User makes of the information provided by the App, or any site or service linked to by App, is at your own risk. The App shall not be responsible or liable, directly or indirectly, for any damage or loss incurred or suffered by any user in connection therewith. Your access and use of linked software and or applications, web sites including information, material, products and services therein, is solely at your own risk.
Unless otherwise noted, all text, images, illustrations, designs, icons, photographs, video clips, and other materials that are part of the App (collectively the "Materials") are copyrighted works, trademarks, trade dress, or other intellectual properties owned, controlled, or licensed by Capptivation, Inc. or used under principles of "fair use." The Materials and the App as a whole are intended solely for your personal use. User may download or copy the Materials for such personal use, provided that User does not remove any copyright or other proprietary notices contained on the Materials. By allowing User to download these Materials for personal use, we expressly do not transfer to User any right, title, or interest in the Materials.
Capptivation, Inc. respects the intellectual property rights of others, and requires that the people who use the App do the same. It is our policy to respond promptly to claims of intellectual property misuse.
No permission is granted here to User to use, or permit others to use, Capptivation Inc.'s icons, site address, trademarks and service marks.
Capptivation, Inc. respects intellectual property rights, and will deny access to our site to anyone who, in our discretion, repeatedly infringes the intellectual property rights of others. In addition, we will use reasonable efforts, in light of our resources, to accommodate generally accepted technical measures used by copyright owners to identify and protect their copyrighted works. If User believe materials posted on our site infringe rights User enjoy under copyright law in specific materials (collectively a "Work"), we request that User direct your concerns to our "Designated Agent" provided below, pursuant to the Digital Millennium Copyright Act (17 U.S.C. \u0e22\u0e07512) (hereafter the "DMCA"). Your notice to us should follow the notice provisions set out in the DMCA. Upon receiving your notice, we agree to respond to it and, if appropriate, remove or disable access to material User believes infringes your Work.
If User is a US copyright owner or an agent of a US copyright owner and believes that any User content or other content on available within the App infringes upon your copyrights, User may submit a notification pursuant to Title 17, United States Code, Section 512, the Digital Millennium Copyright Act (\"DMCA\") to Us. User acknowledges and agrees that upon receipt and notice of a claim of infringement, we may immediately remove the identified materials from the App without liability.
All comments, feedback, postcards, suggestions, ideas, and other submissions disclosed, submitted, or offered to Capptivation, Inc. through our App or website or otherwise disclosed, submitted, or offered in connection with your use of our site (collectively "User Comments") shall be and remain the property of Capptivation, Inc. User agrees that Capptivation, Inc. shall be free to use, without restriction and without compensation to User, any ideas, concepts, know-how, suggestions, or techniques contained in any User Comments User sends to us for any purpose whatsoever. Capptivation, Inc. has no obligation to respond to any User Comments.
All notices, requests, demands and other communications required by this agreement shall be in writing to Capptivation, Inc. 121 Old Roaring Brook Road, Mt. Kisco NY 10549, and except as expressly provided elsewhere in this agreement, shall be deemed to have been given at that time of delivery if personally delivered, or at the time of mailing, if mailed by first class, postage prepaid, and addressed to the party at its address as stated in this agreement.
Each user shall indemnify, defend and hold harmless Capptivation, Inc. and affiliates and their respective officers, employees and agents, and each of Capptivation Inc.'s software, App and or application partners, from any and all claims, demands, damages, costs, and liabilities including reasonable attorneys' fees, made by any third party due to or arising out of that user's acts or omissions, including claims arising out of that user's use of the App; his or her submission, posting or transmission of Content or his or her violation of the Terms and Conditions.
User Agrees to indemnify and defend Capptivation, Inc. and its affiliates from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including reasonable attorneys' fees and legal costs), arising from or relating to: (a) the use of the App by User; (b) the violation of these Terms and Conditions by User or anyone using your account; or (c) the violation of any rights of any third party, including intellectual property, privacy, publicity, or other proprietary rights by User or anyone using your account. Capptivation Inc. reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User. If we do assume the defense of such a matter, User will reasonably cooperate with Capptivation, Inc. in such defense.
User agrees to defend, indemnify and hold Capptivation and or the App harmless from and against any and all claims, damages, costs, and expenses, including attorney's fees, arising from or in any way related to your failure to comply with these Terms and Conditions or use of the App.
The Parties agree that Capptivation, Inc. is not an insurer and no insurance coverage is offered herein. Capptivation, Inc. is not assuming liability and therefore shall not be liable to User for any loss or injury sustained by User as a result of any cause whatsoever, regardless of whether or not such loss or injury was caused by or contributed to by Capptivation Inc.'s negligent (including gross negligence) performance to any degree or failure to perform any obligation or strict products liability. User releases Capptivation, Inc. from any claims for contribution, indemnity or subrogation.
If anyone other than User, including your insurance, asks Capptivation, Inc. or representatives to pay for any loss, damage, cost or expense (including economic losses, property damage, personal injury, or death) arising out of or from, in connection with, related to, as a consequence of, or resulting from any reason, including (1) the active or passive, sole, joint or several negligence of any kind or degree of Capptivation, Inc. or any of its representatives, (2) the improper operation of the App, (3) a breach of contract, or (4) any claims for subrogation, indemnification or contribution, User agree to defend, indemnify and hold Capptivation, Inc. or its representatives harmless (without any condition that Capptivation, Inc. or representatives first pay) from any and all such loss, damage, cost and expense, including attorneys' fees, which may be asserted against or incurred by Capptivation, Inc. or any of the representatives in connection with any and all such claims to the fullest extent permitted by applicable law. Your duty to indemnify, including the cost and duty to defend and hold Capptivation, Inc. and its representatives harmless shall include all of the Capptivation Inc.'s personnel-related costs, overhead, experts' fees, actual attorneys' fees, court costs and all related expenses, including all fees and costs incurred to enforce and establish rights under this indemnification provision. User on its behalf and any insurance carrier waives any right of subrogation User's insurance carrier may otherwise have against Capptivation, Inc. or Capptivation, Inc.'s subcontractors arising out of this Agreement or the relation of the Parties hereto.
Our failure to insist upon or enforce any provision of these Terms and Conditions shall not be construed as a waiver of any provision or right of Capptivation, Inc.. The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver of the right of such party to assert or rely upon such provision or right in any other instance.
Any waiver of any breach of this Agreement, by User or Capptivation, Inc., shall not be construed as a waiver of any subsequent breach. Your rights and Capptivation Inc.'s rights hereunder shall be cumulative, and any rights hereunder may be exercised concurrently or consecutively and shall include all remedies available even though not expressly referred to herein.
USER RELEASES, WAIVES, DISCHARGES AND PROMISES NOT TO SUE OR BRING ANY CLAIM OF ANY TYPE AGAINST Capptivation, INC. FOR LOSS, DAMAGE OR INJURY RELATING IN ANY WAY TO REACH OUT OR SERVICES PROVIDED BY Capptivation, INC.
We reserve the right to modify or terminate the App for any reason at any time without notice to the User. The App may amend and or change this Agreement at any time without notice to User. We may change, move, discontinue, or delete portions of our App, or add to our App at any time. The parties to this Agreement acknowledge that Reach Out retains sole authority to determine the technical operation of the App. Your continued use of the App constitutes your agreement to comply with such modifications and be bound by the Agreement as amended. In addition, by accepting or using the App, User agrees to periodically review this Agreement and be bound by any amendments to the Agreement. Capptivation, Inc. shall not be liable to any user or other third party for any such modification, suspension or discontinuance except as expressly provided herein.
Capptivation, Inc. may make improvements and or changes in the App, including the Terms and Conditions of your use of the App, without liability.
Please check the App frequently for any changes to these Terms and Conditions.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP IS PROVIDED ON AN \"AS IS\" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED. Capptivation, INC. AND OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ABSENCE OF ERRORS, BUGS, VIRUSES, AND OR MECHANISMS WHICH MAY DISABLE, DAMAGE OR INTERFERE WITH COMPUTER SYSTEMS OR NETWORKS.
USER ACKNOWLEDGES THAT YOUR USE OF REACH OUT IS AT YOUR SOLE RISK, THAT USER ASSUMES FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT USER USE IN CONNECTION WITH YOUR USE OF THE APP, AND THAT Capptivation, INC. SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF THE APP. Capptivation, INC. AND OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE APP OR DATA THEREIN FOR ANY PURPOSE OR THE AVAILABILITY OF ANY NETWORKS OR COMMUNICATIONS LINES OR FUNCTIONING OF ANY MOBILE PHONE OR DEVICE NECESSARY FOR THE APP SERVICES.
User agrees that your use of the App and information delivered by the App is at User's own and sole risk. All Services (including all information presented by the App) are provided on an \"AS IS\" and \"AS AVAILABLE\" basis. Capptivation, Inc. disclaims all warranties and duties of any kind, express, implied or statutory, including, but not limited to, any implied warranties of merchantability or fitness for a specific purpose, non-infringement or title, duties of workman-like effort, or lack of negligence. Capptivation, Inc. assumes no responsibility for errors or omissions by the Appt and the data presented by the App and is not responsible in any way for the functionality, specifications, accuracy or any other aspect thereof. Capptivation, Inc. does not guarantee continuous, uninterrupted or secure access to the App or that defects in the App will be corrected. Capptivation, Inc. reserves the right at any time and without prior notice to change the hours of operation to limit your access to the App in order to perform repairs, make modifications and to add or withdraw products or features to or from the App at any time. User is responsible for implementing sufficient procedures to satisfy your particular requirements for protection of your system and or accuracy of data, and for maintaining a means of reconstruction of lost data. Without limiting the above, User agrees that neither Capptivation, Inc. nor any of its parent corporations, subsidiaries, partners, employees, independent contractors, officers, directors, attorneys, agents, affiliates, representatives, successors and or assigns (each a \"Capptivation Party\"; collectively the Capptivation Parties) makes any warranties or undertakes any duties regarding, without limitation, the following: (1) infringement of title or quiet enjoyment; (2) functionality; (3) content, format, accuracy, completeness, or completion of forms; (4) timeliness of Services; (5) uninterrupted, secure, error or virus-free Services or storage; (6) any alteration or destruction of Content resulting from third parties' unauthorized access to or use of the App.
The information presented by the App is given "as is" and without warranties of any kind, either expressed or implied, including all warranties of usability and fitness for a particular purpose. There is no warranty that the App will be available, uninterrupted, error-free, or free of viruses or other harmful components. Capptivation, Inc. is not liable to any person for any damages of any kind, including without limitation direct or indirect, incidental, or consequential damages, losses or expenses arising out of or in connection with the App or use thereof, or in connection with any failure of performance, error, omission, interruption, defect, delay in operation or transmission, network error, device theft, hotline error, computer virus or system failure, even if advised of possibility of such damages, losses or expenses.
In no event will Capptivation, Inc. be liable to any party for any direct, indirect, incidental, special, exemplary, consequential, or other damages (including, but not limited to, lost profits, business interruption, loss of programs or data) without regard to the form of action and whether in contract, tort, negligence, strict liability, or otherwise, arising out of or in connection with this site, any content on or accessed through this site or any site service linked to, or any copying, displaying, or use thereof.
This disclaimer of liability applies to any damages or injuries caused by the App, including, without limitation, those damages or injuries occurring as a result of: (i) any error, omission, deletion, or defect in the Content available on the App; or (ii) any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of records, information or data, unauthorized access to, alteration of, or use of records, information or data, whether for breach of contract, tort, negligence, defamation, or any other cause of action. Capptivation, Inc. does not warrant or guarantee that access to the App will be uninterrupted or error-free.
Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to User.
Capptivation Inc., its officers, employees, representatives, agents, attorneys, or directors on no occasion will be held liable for and indirect, consequential, incidental, or punitive damages in the event not limited to loss in profits or loss of data. Whatever the reason resulting in any claim may be, such as but not limited to personal injury, negligence, breach of contract, whether or not we were advised of the possibility of such damages at any time.
Capptivation, Inc. takes no responsibility of action or lack thereof on the part of User's contacts, nor foreseen or unforeseen consequences resulting from initiated contacts. Capptivation, Inc. takes no responsibility for the proper functioning of any networks or servers, or any communications that occur over such networks and servers. User Agrees that Capptivation, Inc. shall have no liability to User or to any third party arising as a result of any networks or servers failing to perform in the manner intended, failure of the App services to properly operate with your network or servers or from any errors occurring on your networks or servers as a result of your use of the App. User Agrees to defend, indemnify and hold harmless Capptivation, Inc. and its affiliates, officers, directors, employees and agents from and against any and all third party claims (and any and all resulting losses, damages, liabilities, costs and expenses) alleging that your use of Reach Out violates, infringes or misappropriates the rights of any third party or violates applicable law.
To the fullest extent allowed by applicable law, User agrees that none of the Capptivation Parties will be liable to User, your successors, agents, heirs or assigns, and or any other person or entity for general, special, incidental, consequential, indirect, exemplary or punitive damages of any kind, including, but not limited to, those damages resulting from loss of use, data, sales, goodwill, or profits, failure to meet any duty (including good faith or reasonable care) whether or not Capptivation Parties has been advised of the possibility, or under any legal or equitable theory of liability, including theories of tort, contract, or otherwise arising out of the use of the App or the termination of your use of the App.
Capptivation, Inc. has no liability for any procedure and or action that a responder, the police, or other third party or other nominated party carry out when the App is activated by User to call a resource, such as the police.
Capptivation, Inc. does not accept any responsibility or liability for your safety, including but not limited to: negligence or failure to act in a safe manner or follow emergency advice or protocol, personal injury, death or other consequences suffered by User or any third parties. Capptivation, Inc. services is provided on an "as is" basis and is not liable for any loss, damage, errors or omissions in connection with your use of the App. User understands and agrees that Capptivation, Inc. is not liable for your safety. User is solely responsible for taking appropriate safety precautions.
If medical emergency notification services are provided, User agrees that the very nature of such services, regardless of any delay, involves uncertainty, risk and possible serious injury, disability or death, for which User will not attempt to hold Capptivation, Inc. responsible or liable whatsoever. The Parties agree that the App is not designed or guaranteed to prevent any loss or injury.
If the User activates a communication for any reason, User shall (i) pay, without reimbursement from Capptivation, Inc., any and all associated costs and expenses however incurred. If User fails to provide access to a responder to a communication, responder(s) may use forcible means to enter the Premises, which may result in damage to the Premises, all of which damage, cost and expense shall be borne solely by User without recourse to Capptivation, Inc. or representatives. Capptivation, Inc. has no control over response times for responders. User hereby release Capptivation, Inc. and the representatives for and from all claims, losses and damages that may arise from any forced entry or any delayed response by responders.
Capptivation, Inc. neither represents nor warrants that any service will prevent any loss, damage or injury to person or property, will function at a desired time, or provide any personal protection in any circumstance. User acknowledges that Capptivation, Inc. is not an insurer, and that User assumes all risk for loss or injury to User's property or person. Capptivation, Inc. has made no representation or warranties, and hereby disclaims any warranty of merchantability or fitness for any particular use.
USER ACKNOWLEDGES THAT THE APP SERVICES ARE NOT A GUARANTEE OF SAFETY AGAINST PERSONAL HARM OR PREVENTION OF LOSS, LIABILITY, INJURY AND DAMAGE OF WHATSOEVER NATURE AND HOWSOEVER ARISING.
Capptivation, INC. SHALL NOT BE LIABLE TO USER FOR ANY DAMAGE, LOSS, LIABILITY OR INJURY OF WHATSOEVER NATURE AND HOWSOEVER ARISING THAT MAY RESULT FROM ANY FORCE MAJEURE OR CASUS FORTUITOUS INCLUDING BUT NOT LIMITED TO UNFORESEEABLE INTERRUPTIONS IN TELEPHONE, COMMUNICATIONS, INTERNET OR RADIO LINKS.
USER AGREES TO ALWAYS USE COMMON SENSE AND SEEK HELP WHEN IT IS NEEDED. Capptivation, INC. CANNOT AND DOES NOT GUARANTEE THAT ANY EMERGENCY PERSONNEL WILL RESPOND IN A TIMELY MANNER OR AT ALL, OR THAT THE MOST APPROPRIATE PERSONNEL WILL RESPOND. ADDITIONALLY, EMERGENCY RESPONSE PERSONNEL MAY NOT RESPOND BECAUSE OF LOCAL LAWS, REGULATIONS OR POLICIES. USER SHOULD VERIFY THAT APPROPRIATE EMERGENCY PERSONNEL HAVE BEEN CONTACTED AND HAVE ALL INFORMATION NEEDED TO RESPOND TO THE EMERGENCY.
NO GUARANTEE; NO LIABILITY. THE APP AND SERVICES DO NOT CAUSE AND CANNOT ELIMINATE OCCURRENCES OF ANY HARMFUL EVENTS, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, ASSAULT, CRIME, INJURY, FIRES, FLOODS, BURGLARIES, ROBBERIES AND MEDICAL PROBLEMS. OTHER THAN THE LIMITED WARRANTY AND OR QUALITY SERVICE PLAN SET FORTH IN THESE TERMS AND CONDITIONS. TO THE EXTENT PERMITTED BY LAW, Capptivation, INC. DISCLAIMS LIABILITY ON BEHALF OF ITSELF AND ITS AGENTS AND CONTRACTORS (WHICH AGENTS AND CONTRACTORS ARE THIRD PARTY BENEFICIARIES UNDER THESE TERMS AND CONDITIONS) FOR ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER AS A RESULT OF BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
User waives the right to trial by jury in any suit, action or other legal proceeding in connection with this Agreement. This jury trial waiver cannot be revoked.
Capptivation, Inc. takes no responsibility for the proper functioning of any networks or servers, or any communications that occur over such networks and servers. Capptivation, Inc. makes no representations or warranties as to the interoperability of the App with any network or servers. User acknowledge that Capptivation, Inc. shall have no liability to User or to any third party arising as a result of any networks or servers failing to perform in the manner intended, failure of the App to properly operate with your network or servers or from any errors occurring on your networks or servers as a result of your use of the App.
NO SUIT OR ACTION SHALL BE BROUGHT AGAINST Capptivation, INC. MORE THAN ONE (1) YEAR AFTER THE DATE OF THE INCIDENT THAT RESULTED IN THE LOSS, INJURY OR DAMAGE, OR THE SHORTEST DURATION PERMITTED UNDER APPLICABLE LAW IF GREATER THAN ONE (1) YEAR.
BENEFIT TO OTHERS. THE PROVISIONS OF THESE TERMS AND CONDITIONS SHALL APPLY TO AND BENEFIT Capptivation, INC. AND ITS AGENTS, EMPLOYEES, CONTRACTORS, SUBSIDIARIES, DEALERS, AFFILIATES, PARENTS (BOTH DIRECT AND INDIRECT), AFFINITY MARKETERS AND OTHER PARTNERS.
Capptivation, Inc. is neither responsible nor liable for any viruses or other contamination of your system nor for any delays, inaccuracies, errors or omissions arising out of your use of the App with respect to the material delivered by the App.
USER ACKNOWLEDGES AND AGREES THAT THE INFORMATION, SOFTWARE, APPLICATIONS, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE APP MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS AND THAT Capptivation, INC. SHALL HAVE NO LIABILITY FOR SUCH ERRORS. INFORMATION USER MAY RECEIVE VIA THE APP MAY NOT BE RELIED UPON BY USER FOR PERSONAL, SECURITY, MEDICAL, LEGAL OR FINANCIAL DECISIONS AND USER SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION.
USER UNDERSTANDS AND AGREES THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE APP IS DONE AT YOUR OWN RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM Capptivation, INC. OR THROUGH THE APP WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS AND CONDITIONS.
USER ACKNOWLEDGES AND AGREES THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IN NO EVENT WILL Capptivation OR ITS AFFILIATES, INCLUDING, WITHOUT LIMITATION, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS, BE LIABLE TO USER OR ANY OTHER PARTY FOR ANY DIRECT OR INDIRECT LOSS, DAMAGE, COST, EXPENSE OR LIABILITY OF ANY KIND (\"LOSS\") ARISING IN ANY WAY OUT OF OR IN CONNECTION WITH THE AVAILABILITY, USE, ACCURACY, RELIANCE ON, OR INABILITY TO USE THE APP, INCLUDING (WITHOUT LIMITATION): (i) DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS AND OTHER PROFITS, LOSS OF PROGRAMS, COST OF REPLACING EQUIPMENT OR SOFTWARE OR LOSS OF RECORDS, INFORMATION OR DATA, LOSS OF USE OF DATA, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF CUSTOMERS, LOSS OF OR DAMAGE TO REPUTATION, LOSS OF CAPITAL, DOWNTIME COSTS, LOSS UNDER OR IN RELATION TO ANY OTHER CONTRACT, OR LOSS OF ANTICIPATED SAVINGS OR BENEFITS; (ii) ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSS; OR (iii) ANY LOSS ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE APP OR IN THE INFORMATION PRESENTED BY THE APP. THE EXCLUSION OF LIABILITY IN THIS SECTION APPLIES EVEN IF Capptivation, INC. SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PARTICULAR KINDS OF LOSS, IN SUCH STATES OR JURISDICTIONS, Capptivation INC.'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW (THEREBY MINIMIZING Capptivation INC.'S LIABILITY TO USER TO THE LOWEST AMOUNT THAT APPLICABLE LAW PERMITS).
UNDER NO CIRCUMSTANCES WILL USER ATTEMPT TO HOLD Capptivation, INC. LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY OR DAMAGES TO PROPERTY. IF, NOTWITHSTANDING THE PROVISIONS OF THIS PARAGRAPH Capptivation, INC. IS FOUND LIABLE FOR LOSS, DAMAGE OR INJURY UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE APP OR SERVICES PROVIDED BY Capptivation, INC..
Capptivation INC.'S LIABILITY TO USER SHALL BE LIMITED TO ANY PAYMENTS MADE BY USER TO Capptivation, INC. OR $500, WHICHEVER IS GREATER. THIS AGREED-UPON AMOUNT IS NOT A PENALTY. RATHER, IT IS USER'S SOLE REMEDY ALTERNATIVELY TO TERMINATION OF SERVICE ALONE. THE PROVISIONS OF THIS PARAGRAPH APPLY NO MATTER HOW THE LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE OCCURS, EVEN IF DUE TO THE PERFORMANCE OR NONPERFORMANCE BY Capptivation, INC. OF ITS OBLIGATIONS UNDER THIS CONTRACT OR FROM NEGLIGENCE (ACTIVE OR OTHERWISE), STRICT LIABILITY, VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER THEORY OF LIABILITY OR ALLEGED FAULT ON THE PART OF Capptivation, INC., ITS AGENTS OR ITS EMPLOYEES.
IF USER IS DISSATISFIED WITH ANY PORTION OF THE APP, OR WITH ANY OF THESE TERMS AND CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY, UNLESS LIQUIDATED DAMAGES ABOVE ARE LAWFULLY AWARDED, IS TO DISCONTINUE USING THE APP.
User understands that the technical processing, functioning and transmission of the App may involve (i) transmissions over various networks; and (ii) changes to content to conform and adapt to technical requirements of connecting networks or devices. Capptivation, Inc. assumes no responsibility for the deletion or failure to store content or other information. Capptivation Inc. accepts no responsibility or liability for any interruption or delay of any service. No liability for Phone Lines or Other Connectivity. Due to the potential for service interruption or outages on phone lines, internet service or mobile phone systems or other communication systems, none of which are within the control of the Capptivation, Inc., your connection to the App is not guaranteed. Users who use cable or Voice over Internet Protocol (VOIP) for their service are subject to additional consistency and reliability issues. Capptivation, Inc. is not responsible for, and shall have no liability with respect to, service interruption, outages or failure of customer's telephone service.
To the extent Capptivation Inc. may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Capptivation Inc.'s liability will be the minimum permitted under such law. Some jurisdictions may not allow the exclusion of implied warranties, so some of the above exclusions may not apply to User. Check your local laws for any restrictions or limitations regarding the exclusion of implied warranties.
We shall not have any liability to User as a result of Our delay or failure to perform Our obligations under this Contract as a result of reasons beyond Our reasonable control including but not being limited to acts of God, war, riot, flood, earthquake, actual or threatened terrorism, power failures, equipment failure, communications interruptions, fire, labor disputes, subcontractor or supplier delays or failures, strikes, utility failures, civil commotion, malicious damage, explosion, governmental actions, financial constraints and any other similar events.
Nothing in this Contract shall exclude or limit any statutory rights which User has as a consumer; or our liability for death or personal injury due to our negligence.
User agrees that these Terms and Conditions are governed by the laws of the United States of America and the laws of the State of New York. User Agrees that exclusive jurisdiction for any claim or dispute with Capptivation, Inc. or relating in any way to your use of the App resides in the courts of the County of Westchester, State of New York, and User further agrees and expressly consents to the exercise of personal jurisdiction in the courts of the County of Westchester, State of New York, in connection with any such dispute and including any claim involving Capptivation, Inc. or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers. Use of the App is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms and Conditions, including without limitation this section.
Capptivation, Inc. reserves the right to terminate this Agreement at any time for any reason without notice. The User may terminate this Agreement at any time without notice to Capptivation, Inc. by discontinuing use of the App. Capptivation, Inc. reserves the right, in its sole discretion, to terminate your access to the App or any portion thereof at any time, without notice. Capptivation Inc.'s obligation to provide Services shall terminate automatically as of the date the App is disabled and or uninstalled by Use on a User device or equipment.
This Agreement is for an indefinite period of time and may be terminated by either party for any reason or no reason at all. Capptivation, Inc. reserves the right to suspend access to the App at any time for any reason.
If User no longer accepts these Terms and Conditions, or any future modification to these Terms and Conditions, User must cease using the App. Continued use of the App indicates User's continued acceptance of these Terms and Conditions.
If, for any reason, we believe that User has not complied with these Terms and Conditions, we may, at our sole discretion, cancel your access and or use of the App immediately and without prior notice. Capptivation, Inc. may at any time discontinue, suspend, or change any aspect of the App without informing User beforehand.
We shall have no liability to User and or any third party resulting from Capptivation Inc.'s termination of the App or this Contract. User acknowledges that in the event of termination of this Contract, We have no further duty to User.
Capptivation INC.'S RESPONSIBILITY AND OBLIGATIONS TO USER CEASE IMMEDIATELY WHEN THIS AGREEMENT IS TERMINATED OR THE SERVICES ARE SUSPENDED AN OR CANCELED OR THE APP IS DISCONTINUED. THE PROVISIONS OF THIS CLAUSE DO NOT IN ANY WAY DEROGATE FROM THE EXEMPTIONS FROM LIABILITY CONTAINED ELSEWHERE IN THIS AGREEMENT.
If any provision of this Contract is unenforceable, it shall not affect the enforceability of the remaining provisions of this Contract.
If for any reason a court of competent jurisdiction finds any provision of these Terms and Conditions, or any portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of these Terms and Conditions, and the remainder of these Terms and Conditions shall continue in full force and effect.
User agrees that this consent is severable from this Agreement and shall apply even in the event of termination of the Agreement.
Following termination of these Terms and Conditions, limitations on Capptivation Inc.'s liability and indemnification by User shall survive termination and continue to apply. Headings
The headings and paragraph titles used herein are solely for convenience of the parties only and shall not be considered in construing the provisions of this Contract. In this Contract, the word "including" is not a word of limitation but means "including, without limitation or example."
User understands and accepts these Terms and Conditions herein without limitation or qualification. User expressly agrees to and accepts these Terms and Conditions herein. Additionally by any use of the App User continues to agree and continues to be bound by these Terms and Conditions.