YOU MAY NOT USE THE SERVICE IF YOU ARE A COMPETITOR TO CAPTIVATEIQ.
YOU MAY NOT USE THE SERVICE IF YOU ARE UNDER THE AGE OF 13.
The “Service” includes (a) the Site, (b) CaptivateIQ's incentive compensation services and related technologies, and (c) any software (including the Software, as defined below), data, reports, text, images, and content made available through any of the foregoing, and any new features added to or augmenting the Service, and all enhancements, modifications, and derivative works thereof.
Subject to your compliance with all the terms and conditions of this TOS, including any payment obligations, you may access and use the Service only for its intended purpose during the term of your subscription for the Service.
You agree not to access the Service by any means other than through the interface that is provided by CaptivateIQ for use in accessing the Service. You may not share individual login credentials for the Service, and you will ensure that each user has separate login credentials. You must provide true, accurate, and correct information at the time of registration and account creation, and thereafter. You may not misrepresent your affiliation with a person or entity.
You will not display, distribute, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sublicense, sell, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit (other than internal business use for its intended purpose) or make the Service available to any third party. You will comply with this TOS, and any codes of conduct, policies or other notices CaptivateIQ provides you or publishes in connection with the Service.
You will only access and use the Service for lawful and authorized purposes, and in no event in connection with competitive research or for scoping, benchmarking, developing, or providing any similar or competitive product or service. In addition, you may not exceed the scope of your authorized use of the Service.
You will not use the Service to (or assist another person to) email or otherwise upload any content that (i) infringes or misappropriates any intellectual property or other proprietary or privacy rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) 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; (iv) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, hateful racially, ethnically or otherwise objectionable; or (v) in the sole judgment of CaptivateIQ, which may expose CaptivateIQ or its users to any harm or liability of any type.
You may not interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service.
You will not harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications.
You may not obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Except with respect to any “free trial” of the Service, you will be required to select a payment plan and provide CaptivateIQ information regarding your credit card or other payment instruments accepted by CaptivateIQ. You represent and warrant to CaptivateIQ that such information is, and will be maintained as, true, complete, accurate, and up to date, and that you are authorized to use such payment instrument. You agree to pay and hereby authorize CaptivateIQ to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account in accordance with this TOS. All charges are final, non-cancelable, and nonrefundable, provided that if CaptivateIQ terminates your account on the Service without cause, you will be entitled to a prorated refund of prepaid amounts. All fees may be changed by CaptivateIQ at any time and such increased fee amount will be notified to you and applicable in the following billing cycle (or such other future time notified to you by CaptivateIQ). CaptivateIQ may charge fees for features of the Service that were previously free. Unpaid trial use of the Service is subject to limitations, as may be described in our documentation or otherwise on our Site.
Subject to the limited rights expressly granted herein, CaptivateIQ reserves all rights, title, and interest in and to the Site and Service, including all related intellectual property rights. You may not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm, or methodology to access, acquire, copy, or monitor the Service. No license or right to use any trademark or service mark of CaptivateIQ or any third party is granted to you in connection with the Service.
All comments, feedback, information, ideas, or materials that you submit through or in association with the Site or the Service shall be considered non-confidential. By submitting such comments, feedback, information, ideas, or materials to CaptivateIQ: (i) you represent and warrant that CaptivateIQ's use of your submission does not and will not breach any agreement, violate any law, or infringe any third party's rights; (ii) you represent and warrant that you have all rights to enter into this TOS; (iii) you understand and agree that CaptivateIQ is free to use in any manner all or part of the content of any such communications on an unrestricted basis without the obligation to notify, identify or compensate you or anyone else; and (iv) you grant CaptivateIQ all necessary rights, including a waiver of all privacy and moral rights, to use all comments, feedback, information, or materials, in whole or in part, or as a derivative work, without any duty by CaptivateIQ to anyone whatsoever. You acknowledge that you are responsible for and bear all risk as to the use or distribution of any comments, feedback, information, ideas, or materials.
You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, publish, provide or otherwise link, transmit or store in connection with or relating to the Service (“Your Content”). While You retain ownership of Your Content, by posting Your Content on or through the Service, You hereby do and will grant CaptivateIQ a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with your use of the Service.
You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices; (c) transmission to CaptivateIQ's third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service and (d) transmission to certain Third-Party Services (as defined in below). Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. CaptivateIQ will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
For purposes of this TOS, “Confidential Information” shall include the terms of this TOS, Your Content, each party’s proprietary technology, business processes and technical product information, designs, issues, all communication between the parties regarding the Service and any information that is clearly identified in writing at the time of disclosure as confidential. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the receiving party; (4) the receiving party becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the receiving party; or (5) is aggregate data regarding use of the Service that does not contain any personally identifiable or Customer-specific information.
Each party agrees: (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this TOS or as directed by you; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need to know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section 6 will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.
You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. You will promptly notify CaptivateIQ if you learn of a security breach related to the Service, including the compromise or loss of any of your login credentials.
CaptivateIQ reserves the right to access your account in order to respond to your requests for technical support or to ensure proper functioning of the Service. For the avoidance of doubt, CaptivateIQ has the right, but not the obligation, to monitor the Service, Content, or Your Content. CaptivateIQ will do so if required by law or in the good faith belief that such action is protect CaptivateIQ, the Service, or other users of the Service.
CaptivateIQ will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Content, as described in the documentation for the Service.
You agree to comply with all applicable rules and regulations, and local, state, national or international laws in connection with your access and use of the Service.
You acknowledge and agree that the Service and the transmission of data may be subject to United States export controls. You agree to comply with all applicable U.S. and foreign laws.
The Service enables linking between various online third-party services such as third party email, cloud storage, and similar services (“Third-Party Services”). To take advantage of these feature and capabilities, you may be required to authenticate, register for or log into Third-Party Services through the Service or on the websites of their respective providers. By linking your account on the Service to your account on a Third Party Service, you are authorizing CaptivateIQ as your agent to access your Third Party Service account (and any information, content, materials, and features included therein) and use such Third Party Service (with read and write privileges) on your behalf for the purpose of integrating your experience on the Service with such Third Party Service. Your use of the Third Party Services is governed solely by the agreement between you and the provider of such Third Party Service, and the Third Party Services provider is solely responsible for such Third Party Service.
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet (including without limitation Third-Party Services). CaptivateIQ has no control over such sites and resources and CaptivateIQ is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that CaptivateIQ will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that CaptivateIQ is not liable for any loss or claim that you may have against any such third party.
The Service may include certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
You represent and warrant to CaptivateIQ that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow CaptivateIQ to perform its obligations and exercise its rights) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and CaptivateIQ's exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; (iv) you are thirteen (13) years of age or older, and (v) you have provided true, accurate, and correct information to CaptivateIQ in connection with your account creation and use of the Service.
THE SERVICE, INCLUDING THE SITE AND CAPTIVATEIQ’S CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND CAPTIVATEIQ EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CAPTIVATEIQ DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, OR WILL WORK WITH OR NOT INTERRUPT OR DAMAGE YOUR THIRD PARTY SERVICE OR YOUR CONTENT (INCLUDING ANY CONTENT YOU MAY STORE ON YOUR THIRD PARTY SERVICE), AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM CAPTIVATEIQ OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
Your termination will be effective as of 11:59 pm PST on the last day of the last paid period. CaptivateIQ reserves the right to modify, suspend, or discontinue the Service (or any part thereof) and remove and discard any of Your Content in the Service, without liability and for any reason, including if CaptivateIQ believes that you have violated this TOS, or if you do not accept and agree to be bound by any modification to this TOS. CaptivateIQ will use good faith efforts to provide reasonable contemporaneous notice to you prior to suspension or termination of your account by CaptivateIQ. All of Your Content on the Service may be permanently deleted by CaptivateIQ upon any termination of your account in its sole discretion unless a separate timeline is agreed upon in legal writing.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL CAPTIVATEIQ BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, OR (B) FOR ANY DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. TO THE EXTENT THAT THE LAWS OF SUCH JURISDICTIONS APPLY, CAPTIVATEIQ's LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
You will defend, indemnify, and hold harmless CaptivateIQ from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. CaptivateIQ will provide notice to you of any such claim, suit or demand. CaptivateIQ reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting CaptivateIQ's defense of such matter. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Most user concerns can be resolved quickly and to the user’s satisfaction by emailing user support at [email protected] In the unlikely event that the CaptivateIQ's support team is unable to resolve a complaint you may have (or if CaptivateIQ has not been able to resolve a dispute such disputes through binding arbitration, mediation, or small claims court instead of in courts of general jurisdiction.
CaptivateIQ and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
References to ‘CaptivateIQ's, ‘you’, and ‘us’ include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this TOS, you and CaptivateIQ are each waiving the right to a trial by jury or to participate in a class action. This TOS evidence a transaction in the interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this TOS.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to CaptivateIQ should be addressed to CaptivateIQ, Inc., 740 Murphy Drive, San Mateo, CA 94402 (“Arbitration Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If CaptivateIQ and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or CaptivateIQ may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by CaptivateIQ or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or CaptivateIQ is entitled.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, ‘AAA Rules’) of the American Arbitration Association (“AAA”), as modified by this TOS, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Arbitration Notice Address. The arbitrator is bound by the terms of this TOS. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless CaptivateIQ and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. CaptivateIQ will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the AAA Rules. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA Rules.
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND CaptivateIQ AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and CaptivateIQ agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
Notwithstanding any provision in this TOS to the contrary, we agree that if CaptivateIQ makes any future change to this arbitration provision (other than a change to the Arbitration Notice Address) while you are a user of the Services, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
Assignment. You may not assign this TOS without the prior written consent of CaptivateIQ, but CaptivateIQ may assign or transfer this TOS, in whole or in part, without restriction.
Governing Law. This TOS will be governed by the laws of the United States and the State of California without regard to the principles of conflicts of law (except with respect to federal preemption principles). Unless otherwise elected by CaptivateIQ in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located within San Francisco County, California for the purpose of resolving any dispute relating to your access to or use of the Service not subject to arbitration, as set forth above. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this TOS must be filed within six (6) months after such claim or cause of action arose or be forever barred.
Entire Agreement. The failure of CaptivateIQ to exercise or enforce any right or provision of this TOS will not be a waiver of that right. You acknowledge that this TOS is a contract between you and CaptivateIQ, even though it is electronic and is not physically signed by you and CaptivateIQ, and it governs your use of the Service and takes the place of any prior agreements between you and CaptivateIQ. If any provision of this TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this TOS remain in full force and effect.
Marketing. CaptivateIQ reserves the right to use your name and/or company name, logo, and trademarks and to identify you as a CaptivateIQ user or customer, and for other similar marketing or promotional purposes on CaptivateIQ's website and in other communications and collateral materials provided to with existing or potential CaptivateIQ customers, partners, and investors. To decline CaptivateIQ this right you need to email [email protected] stating that you do not wish to be used as a reference.
Modifications. CaptivateIQ may change this TOS from time to time. If we do this, we will indicate at the top of this page the date these terms were last revised and if applicable, we will post the material changes to this TOS on this page. We will also use commercially reasonable efforts to notify you, either through the Service user interface, in an email notification to the email provided by you in connection with the Service, or through other reasonable means. Any such changes will become effective upon the earlier of (a) your use of the Site and/or Service with actual knowledge of the change, or (b) fifteen (15) days after they are posted. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new TOS, provided that disputes arising hereunder will be resolved in accordance with the TOS in place at the time the facts giving rise to the dispute occurred. Notwithstanding the generality of the foregoing, you understand and acknowledge that you are agreeing to arbitrate disputes arising hereunder (as described in further detail under the heading “Dispute Resolution By Binding Arbitration”), and that the terms of our Arbitration Agreement will not be modified without your express agreement.