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Terms and Conditions of Software

These terms and conditions (hereinafter “Agreement”) regulate the use of the Software in the framework of the Services performance, made available by CAPTIO TECH S.L. (hereinafter “Captio”) to the Users, via website access at the Internet portal , via iOS or Android, online or offline and via the desktop application.

The use of the Software by the User entails acceptance of the Agreement. By clicking and indicating the acceptance the User accept these Agreement regulating the use of the Software

1. Definitions.

In addition to those terms defined elsewhere in the Agreement, the following words and phrases in initial capital letters shall have the meanings set forth below:


1.1 “Affiliate" means each legal entity that directly or indirectly controls, is controlled by, or is under common control with Captio or Customer, as applicable, on or after the Subscription Start Date and for so long as such entity directly or indirectly controls, remains controlled by, or is under common control with Captio or Customer (where “controls” (in its various forms herein) means the ownership of, or the power to vote, directly or indirectly, a majority of any class of voting securities of a corporation or limited liability company, or the ownership of any general partnership interest in any general or limited partnership), excluding any direct competitor or entity that is a party to a written agreement with Captio for the same Service(s) that are the subject of the Agreement.


1.2 “Agreement” means these terms and conditions together with any exhibits attached hereto, the Documentation, and each Order Form.


1.3 “Authorized User” means any individual to whom Customer grants access authorization to use the Software, including without limitation, an employee, agent, contractor, partner, shareholder, or representative, provided any such Authorized User is not a competitor of Captio and/or its Affiliates.


1.4 “Claim” means all loss, damage, liability, and expense arising from any claim brought against any such indemnified party by a third party.


1.5 “Confidential Information” shall mean (a) any and all other information which is disclosed by the Disclosing Party to the Receiving Party orally, electronically, visually, or in a document or other tangible form and which is identified or marked as confidential or should be reasonably understood to be confidential or proprietary; (b) test results, error data, feedback, reports; (c) identity of the Disclosing Party; (d) any information marked or otherwise identified as confidential at the time of disclosure; (e) any information that a reasonable person would understand to be confidential based on the type of information or the circumstances of its disclosure, and existence of this Agreement; or any other documentation or support which contains information of the Disclosing Party and that have been disclosed in connection with this Agreement.

1.6 "Content" means all content, excluding Customer Data, located on or contained in the Captio website, or any other website owned or controlled by Captio, or belongs to Captio’s company group, and any information, documents, reports, benchmarks or similar items contained in or made available to Customer in the course of using the Software, other than the Software itself.


1.7 “Customer” means the natural person or the legal entity identified in the Order Form.


1.8 "Customer Data" means any personal data related to (i) Customers’ representatives that are entered into the Service by or on behalf of Customer and (ii) Authorized Users. Customer Data and its derivatives will not include Captio’s Confidential Information.


1.9 “Disclosing Party”: means the Customer and/or Authorized User and/or Captio when provide access to Confidential Information.


1.10 "Documentation" means the materials provided to Customer describing the functionality, use, and operation of the Software including without limitation online materials, specifications or forms.


1.11 “Intellectual Property” means inventions, articles of manufacture, compositions of matter, methods, apparatus, improvements thereof, ideas, conceptions, formulas, data, programs, other works of authorship, derivative works, know-how, improvements, discoveries, developments, designs and techniques, technical or business information, names or marks, characters, other proprietary information, or any other intellectual property anywhere in the world, whether tangible or intangible.


1.12 “Intellectual Property Rights” means all proprietary and intellectual property rights worldwide, including without limitation any and all utility patents, design patents, copyrights, trademarks, trade secrets, moral rights, database rights, topography rights, character rights, sui generis protection, rights of publication, rights of privacy, trade dress, and any other worldwide intangible or tangible right related to Intellectual Property (including without limitation the right to apply for the same together with any pending registrations, applications, divisional, continuations, derivatives, reissues, and reexaminations associated therewith).


1.13 “Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including for example, viruses, worms, time bombs, and Trojan horses.


1.14 “Order Form” means a written order through which the Customer request the Services to Captio, and that references these Terms and Conditions.


1.15 “Receiving Party” means the Customer and/or the Authorized User and/or Captio when receives the Confidential Information.


1.16 “Software” means the proprietary software named “Chrome River invoice” developed and owned by Chrome River Technologies Inc. (a company that belongs to Captio’s company group), which is aimed to capture, store, match and approve invoices in a modern interface and which is distributed by Captio.


1.17 “Subscription Start Date” “means the date when the Customer sign the Order Form.


1.18 "Service(s)" means the services provided by Captio to the User in relation to the Software which consist in (i) implementing the Software into the User’s environment; (ii) providing SLA support and (iii) any other service described in the Order Form and previously negotiated between Captio and the Customer. The Services does not carry the delivery of any future functionality or features, or dependent on any oral or written public comments made by Captio regarding future functionality or features.


1.19 “Subscription Term” means the term of a Service subscription identified in the applicable Order Form, including all renewals (if applicable).


1.20 “Taxes”: means any taxes, levies, or duties imposed by taxing authorities.


1.21 “Usage Metrics” means the standard of measurement for determining the permitted use and calculating the fees due for the Service as set forth in an Order Form.


1.22 “User(s)” means the Customer and the Authorized User.

1.23 “User ID” means the unique credentials created and assigned to each User for the purpose of accessing and utilizing the Software in accordance with the Agreement.


2. Grant of Rights and Usage of Software.


2.1 Subject to the terms of the Agreement, Captio hereby grants to User a non-sublicensable, non-transferable (except as provided in the Agreement), non-exclusive right to access and use the Software, in accordance with the Documentation, and solely for User’ internal business operations.


2.2 Customer may permit Authorized Users to use the Software and all of its Content. Usage is limited to the Usage Metrics and volumes stated in the Order Form(s). Customer is responsible for all activity by its Authorized Users and will not permit User IDs to be used by more than one (1) individual. Captio reserves the right to suspend or terminate any User which it reasonably determines may have been used for an unauthorized purpose, subject to prompt notice by Captio of such suspension or termination.


2.3 User shall: (i) use the Software and all of its Content in a diligent manner; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software and will promptly notify Captio of any actual or suspected unauthorized access and/or use; (ii) report to Captio promptly and use reasonable efforts to stop any unauthorized copying or distribution of Content; and (ii) comply with all applicable laws, rules and regulations when using the Software and all of its Content


2.4 Customer hereby grants Captio a non-exclusive, non-transferable (other than as set forth in the Agreement), worldwide right to use the Customer Data as follows: (i) as necessary for the limited purpose of performing the Service, (ii) as permitted or required by applicable law, and (iii) to create anonymized data or to combine with other data sources to create aggregate data (collectively “Analyses”) provided such information does not identify any specific individual as the source of such data.


2.5 Users may access certain Services through mobile applications obtained from third-party websites such as the Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.

3. Restrictions


3.1. User will not without prior written consent of Captio: (a) access or copy any Content or data or information of other Service Users; (b) harvest, collect, gather or assemble information or data regarding other Users without their written consent; (c) disassemble, decompile, reverse-engineer, copy, translate or make derivative works of the Software, Documentation, or Content; (d) transmit or upload any content or data that is unlawful, infringes any intellectual property rights, or contains any Malicious Code; (e) knowingly interfere with or disrupt the integrity or performance of the Software or the Content; (f) harass or interfere with another User's use and enjoyment of the Software, Content and Services; (g) circumvent or endanger the operation or security of the Software; (h) use the Software for the benefit of a third party, for timesharing or to operate a service bureau; (i) create Internet "links" to or from the Software; (j) remove, cover, alter or obfuscate any logos, trademarks, internet links, confidentiality or proprietary rights notices, or any other notices or markings placed on or displayed by Service or the Documentation; (k) access the Software for purposes of: monitoring its availability, performing any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan, or any benchmarking or competitive services; or (l) otherwise use the Software in any manner that exceeds the scope of use permitted under this Agreement.


4. Ownership


4.1 All Intellectual Property Rights and any other right over the Software are and shall remain the exclusive property of Chrome River Technologies Inc., and/or Captio. In this regard, except as expressly provided in the Agreement, Chrome River Technologies Inc., and Captio reserves all right, title and interest in the Software (including all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, and moral rights whether registered or not, as well as any extension, improvement or amendment of them), and all associated copyrights, trademarks, and other Intellectual Property Rights. All rights not expressly granted herein are reserved by Captio. Except expressly set forth in the Agreement, neither the execution of this Agreement nor the performance of the Services hereunder shall be construed as an assignment or transmission, either expressly or by implication, of any Intellectual Property Rights now or hereafter owned by or controlled by Chrome River Technologies Inc., and Captio.


4.2 Customer owns and retains all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data and Customer’s Confidential Information. Except as otherwise expressly authorized herein or by Customer in writing, the non-exclusive use rights set forth in the Agreement are the entirety of Captio’s rights in connection with the Customer Data and Customer’s Confidential Information.


5. Captio Responsibilities


5.1 Captio shall provide access to the Software, as described in the Agreement. Notwithstanding anything in the Agreement to the contrary, Captio may from time to time effect reasonable modification to the Software and/or the Documentation , without Customer’s prior consent, provided that any such modification does not reduce the Service level commitments, security or the overall level of beneficial Service provided to User immediately prior to such modification. Any such updates are in the sole discretion of Captio.


5.2 Captio has implemented and will maintain reasonable and appropriate security measures based on applicable industry best practices.


6. Customer Data


6.1 Customer is solely responsible for providing and ensuring the accuracy of all Customer Data required for the proper operation of the Service. Customer will collect and maintain all personal data contained in the Customer Data in compliance with the General Data Protection Regulation (Regulation (EU) 2016/679) (hereinafter, “GDPR”) and any other applicable data privacy and protection laws.


6.2 During the Subscription Term, Customer can access its Customer Data at any time through the Software. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case Captio and Customer will find a reasonable method to allow Customer access to Customer Data. At the end of the Agreement, the Customer Data remaining on servers hosting the Service will be delete, unless applicable law requires retention. Retained Customer Data is subject to the confidentiality provisions of the Agreement.


6.3 Captio shall process Customer’s Data for executing the access of the Software and for providing the Services. For these purposes, the processing shall be governed by the Data Processing Agreement (hereinafter, “DPA”) attached in this Agreement. The DPA is available at this link and is incorporated in the Agreement by reference to the extent required by the GDPR and any other applicable law. Captio may subcontract the provision of all or part of the Services described in this Agreement to its suppliers or subprocessors. The updated list of Captio’ subprocessors is available at this link.


7. Fees and Payment


7.1 Except as otherwise expressly set forth in the applicable Order Form, Customer will pay each accurate invoice within thirty (30) days after the applicable invoice date. All fees and other charges shall be paid to Captio in Euros or such currency specified in the Order Form. If travel is requested by Customer or required for Services provided on-site at a Customer location, Customer will pay all reasonable and pre-approved expenses associated with such travel. If Customer specifies in an Order Form that it is issuing a purchase order for such Order Form, Captio will reference the applicable Customer purchase order number on its invoices so long as Customer provides the purchase order number at least five (5) business days prior to the date of the applicable invoice. Except as otherwise specifically provided in this Agreement, all payment obligations are non-cancelable and all amounts paid are nonrefundable.


7.2 Fees due under the Agreement do not include Taxes, all of which will be for Customer’s account. Customer is responsible for all Taxes, other than Captio’s income or payroll taxes. Customer must provide to Captio any direct pay permits or valid tax-exempt certificates prior to signing any Order Form.


7.3 If, at any time, Customer is delinquent in the payment of any fees due hereunder, Captio may notify Customer in writing of such breach and, in such case, Customer will have thirty (30) days from such written notice to cure the breach. If Customer fails to cure such breach within such 30-day period, then Captio may suspend the Service at its sole discretion and without prejudice to its other rights until such fees are paid in full. Captio reserves the right to impose a reconnection fee in the event the Service is suspended and thereafter request access to the Service. Late payments hereunder will accrue interest beginning as of the due date at the rate of one and one-half percent per month or the highest rate allowed by applicable law, whichever is lower.


7.4 The fees of the Services will be annually reviewed, according to, if applicable, to adjust them to any possible increase of the General Index of Consumer Prices (CPI), as published by the National Statistics Institute or an organization that replaces it, for which purpose it will be compared with the CPI of the immediately prior month to the subscription start date of each anniversary, with the CPI corresponding to that same month of the previous year. This fees revision according to the CPI constitutes a mere update of the prices, and not a modification of them and do not require the authorization of Customer.


8. Warranties


8.1 Captio and User each hereby represents and warrants to the other that: (a) it has the authority to enter into the Agreement and to perform its obligations under the Agreement; and (b) it will comply with all laws and regulations applicable to it in connection with: (i) in the case of Captio, the operation of its business as it relates to the Software, and (ii) in the case of Customer, the Customer Data and User’s use of the Software.


8.2 Captio warrants that, during the term of the Agreement, the Service provided hereunder: (a) will be performed: (i) in a professional manner consistent with generally accepted industry standards reasonably applicable to the provision of the Service; and (ii) substantially in accordance with the Documentation relating to the configuration, operation, support, and use of the Software that are provided to User under the Agreement, as reasonably updated from time to time; and (b) does not contain any disabling code (defined as computer code designed to interfere with the normal operation of the Software) or any program routine, device or other undisclosed feature (including but not limited to, a time bomb, virus, software lock, drop-dead device, malicious logic, worm, trojan horse, or trap door) which is designed to delete, disable, deactivate, interfere with or otherwise harm the Software or Customer Data. Notwithstanding the foregoing, Captio does not warrant the continuity of operation or uninterrupted or error-free operation of the Software, or interoperability with other software or computer application, or third-party device.


8.3 User’s sole and exclusive remedies and Captio’s entire liability for a breach of the warranties in (a) above will be the re-performance of the deficient Service, and, if Captio fails to re-perform, Customer may terminate its subscription to the affected Service with notice received within two(2) months of such failure to re-perform. The Service will be maintained with the average monthly system availability as set forth in the Documentation (“SLA”). However, User’s sole and exclusive remedy for a breach of the SLA is provided in the SLA.


8.4 At least annually and at no expense to Customer, Captio will review its operations and procedures relating to its operations center applicable to providing the Service to User , including its security and compliance programs, which review will be by a qualified independent third party in accordance with the current SOC 1 auditing standards or such other standards as determined by Captio. Following reasonable Customer’s request, Captio will provide Customer with copies of documentation relevant to such review to the extent permitted by law and subject to applicable regulatory restrictions and confidentiality obligations.


9. Limitation of Warranty


9.1. THE WARRANTIES IN SECTIONS 8.2 AND 1.1 WILL NOT APPLY IF THE SOFTWARE IS NOT USED IN ACCORDANCE WITH THE AGREEMENT OR THE DOCUMENTATION OR ANY NON-CONFORMITY IS CAUSED BY CUSTOMER AND/OR ITS AFFILIATES AND AUTHORIZED USER’S. THE EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT ARE THE SOLE WARRANTIES PROVIDED BY CAPTIO HEREUNDER. CAPTIO SPECIFICALLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE OR ANY OTHER ITEMS OR SERVICES COVERED BY OR FURNISHED UNDER THE AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY (I) OF MERCHANTABILITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, OR (III) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. CAPTIO DOES NOT WARRANT THAT ANY ITEMS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.


10. Limitation of Liability

 

10.1 EXCEPT for liability arising under Sections 11 and 12 or for fraud or willful misconduct, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, CLAIMS SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST DATA, OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, OR LOSS OF USE OF ANY INFORMATION OR DATA OF THE SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED HEREIN.


10.2 EXCEPT for liability arising under Sections 11 and 12 or for fraud or wilful misconduct, or amounts owed hereunder, EACH PARTY'S TOTAL LIABILITY under the AGREEMENT, for whatever cause, whether in an action in contract or in tort or otherwise, will be limited to general money damages and shall in no event exceed an amount equal to the aggregate of all fees actually paid or owing hereunder by Customer to EMBURSE for the applicable Service directly causing the damage during the twelve month period preceding the time that the claim arose (BUT NOT LESS THAN THE AMOUNT OF BASE FEES DUE DURING THE FIRST YEAR AFTER THE EFFECTIVE DATE).


11. Indemnification


11.1 Subject to the terms of the Agreement, Captio shall defend and indemnify Customer its Authorized Users, its employees, agents, successors and assigns from and against any Claim: (a) to the extent alleging that the Software, as provided by Captio and used in accordance with the terms of the Agreement, infringes upon any valid patent, copyright, trademark, trade secret, or other proprietary right of such third party; or (b) to the extent based on a breach of Section 8.3 that results in the unauthorized disclosure of personal data to a third party. Notwithstanding the above, Captio shall have no liability for any infringement Claim to the extent such Claim: (i) pertains to any Captio Intellectual Property that has been altered or modified without Captio’s prior written approval; or (ii) is based on use of the Software in conjunction with any item not provided by Captio or authorized by Captio in writing, unless such use is shown to constitute the infringement when not used in conjunction with the item not provided by Captio.


11.2 Subject to the terms of the Agreement, User agrees to indemnify, save, and hold Captio, its contractors, employees, agents and its third-party suppliers, licensors, partners and any company that belongs to Captio’s company group harmless from any Claim, arising out of Customer’s and Authorized User’s use or misuse of the Software, any violation of this Agreement, or any breach of the representations, warranties, and covenants made by Customer herein. Captio reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which User is required to indemnify Captio, and the User agrees to cooperate with Captio’s defense of these Claims. Captio will use reasonable efforts to notify the User of any such Claim, action, or proceeding upon becoming aware of it.


11.3 For any indemnifiable Claim described in the Section 11: (a) the indemnifying party shall have the sole responsibility, at its expense, to defend and, at its sole discretion, to settle any such Claim, provided that, if any settlement requires a non-monetary obligation of an indemnified party (other than ceasing use of the Software), then such settlement shall require the indemnified party’s prior written consent, which consent will not be unreasonably withheld; and (b) the indemnified party shall provide prompt written notice of such Claim and reasonably cooperates with indemnifying party (at indemnifying party’s expense) in the defense or settlement of such Claim.


11.4 If, in the event of an indemnifiable infringement Claim as set forth in Section 11.1 above, the Software is held to infringe any valid patent, copyright, trademark, trade secret, or other Intellectual Proprietary Right of such third party, or in Captio’s opinion is likely to infringe any valid patent, copyright, trademark, trade secret, or other Intellectual Proprietary Right of such third party, then, in addition to its obligations set forth in Section 11.1 above, Captio shall, at its option and in its sole discretion, either: (a) procure for User r the right to continue using the Software in accordance with its rights under the Agreement; (b) replace or modify the Service with a substantially equivalent service that does not infringe any valid patent, copyright, trademark, trade secret, or other Intellectual Proprietary Right of such third party; or (c) if Captio is unable to provide one of the foregoing remedies under reasonable terms, or otherwise determines that such remedies are or become economically impractical, then Captio may terminate the Agreement by providing written notice thereof to Customer, without further obligation by either party, except that (x) Customer shall be entitled to, and Captio shall pay Customer, a refund equal to the pro-rata amount of any unused pre-paid fees for the Service paid by Customer as of the effective date of such termination; and (y) Captio’s indemnity obligations under Section 11.1 above apply.


12. Confidentiality


12.1 During the term of this Agreement, the Receiving Party may have access to certain Confidential Information of the Disclosing Party, which value would be impaired if such information were disclosed to third parties. With respect to Captio, Confidential Information shall include, without limitation, the Software and the Documentation and Confidential Information of Customer shall include, without limitation, the Customer Data.


12.2 The Receiving Party hereunder shall not use or otherwise disclose any Confidential Information of the Disclosing Party to a third party without the prior written consent of the Disclosing Party, except that: (i) the Receiving Party may disclose the Confidential Information of the Disclosing Party to its third party advisers (e.g., auditors or attorneys) who have need to know such Confidential Information in performing services on the Receiving Party’s behalf and under terms consistent with the confidentiality and non-use in the Agreement; and (ii) Captio may use or disclose such Confidential Information solely as required to provide the Service or as otherwise authorized by Customer. In addition, each party agrees to take reasonable measures to protect the other party’s Confidential Information and to ensure that such Confidential Information is not disclosed, distributed, or used in violation of the provisions of the Agreement (which measures shall be no less than that which a reasonable person would take with respect to like confidential, proprietary, or trade secret information). Notwithstanding anything to the contrary, the obligations of the Receiving Party set forth in this Section 12 shall not apply to any information of the Disclosing Party that: (a) is or becomes a part of the public domain through no wrongful act of the Receiving Party; (b) was in the Receiving Party’s possession free of any obligation of confidentiality at the time of the Disclosing Party’s communication thereof to the Receiving Party; (c) is developed by the Receiving Party completely independent from the Confidential Information of the Disclosing Party; or (d) is required by law or regulation to be disclosed, but only to the extent and for the purpose of such required disclosure after providing the Disclosing Party with advance written notice, if reasonably possible, such that the Disclosing Party is afforded an opportunity to contest the disclosure or seek an appropriate protective order.


12.3 In the event of a breach of this Section, the parties agree that the non-breaching party will suffer irreparable harm and the total amount of monetary damages for any injury to the non-breaching party will be impossible to calculate and would therefore be an inadequate remedy. Accordingly, the parties agree that the non-breaching party shall be entitled to seek temporary, preliminary and permanent injunctive relief against the breaching party without posting bond, in addition to such other rights and remedies to which it may be entitled at law or in equity.


12.4 The obligations assumed under this clause shall remain in full force and effect not only during the term of this Agreement, but also for as long as the Confidential Information is secret and confidential.


13. Term and Termination.


13.1 This Agreement will commence on the Subscription Start Date and will continue until the earlier of: (a) termination as set forth in this Section 13; or (b) expiration or termination the Order Form.


13.2 Either party may terminate the Agreement as follows: (a) upon thirty (30) days written notice of the other party’s material breach unless the breach is cured within such 30-day period; or (b) as permitted under Sections 8.3 and 11.4 above.


13.3 Upon termination of the Agreement: (a) except for termination by Customer for material breach by Captio, any amounts owed to Captio under the Agreement will become immediately due and owing; (b) all rights granted to User under the Agreement shall immediately terminate, in which case Captio may invalidate the passwords and/or other User ID for Users and otherwise deny further access to the Software; (c) upon Captio’s request made within thirty (30) days after such termination, User will return or destroy all Captio’s property that is in its possession or control; and (d) upon Customer’s request made within thirty (30) days after such termination, Captio will (i) allow Customer access to the Software for the purpose of retrieving Customer Data for a period not to exceed thirty (30) days, or (ii) subject to applicable fees, provide Customer with a copy of all Customer Data that is in its possession or control, provided that Customer has paid all fees due under the Agreement and all Order Forms hereunder. After such thirty (30)-day period, each party may destroy any such information of the other party in its possession or control. Termination of the Agreement shall not be construed to waive or release any Claim that a party is entitled to assert at the time of such termination (including any Claim for fees accrued or payable to Captio prior to the effective date of termination), and the applicable provisions of the Agreement shall continue to apply to such Claim until it is resolved. Upon termination of the Agreement, all outstanding fees are immediately due and payable. The terms of Sections 3, 4, 8.3,9, 10, 13.3, and 14 shall survive the termination of the Agreement for any reason.


14. General.


14.1 Relationship of the Parties; Independent Contractors. In making and performing under the Agreement, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venture, or partner of the other party for any purpose. Neither party shall have any authority to act for or to bind the other party in any respect, except as otherwise expressly provided in the Agreement. Captio’s personnel shall not be considered employees of the User, and shall not be entitled to participate in, or receive benefits under, any of Customer’s employee benefit or welfare plans.


14.2 Assignment. The Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which permission shall not be unreasonably withheld. Any attempted assignment without such consent will be void. Notwithstanding the foregoing, either party may assign its rights and obligations under the Agreement, in whole but not in part, without the other party’s permission, in connection with any merger, consolidation, sale of all or substantially all of such assigning party’s assets, or any other similar transaction; provided, that the assignee: (a) provides prompt written notice of such assignment to the non-assigning party; (b) is capable of fully performing the obligations of the assignor under the Agreement; and (c) agrees to be bound by the terms and conditions of the Agreement. The Agreement is binding on the parties hereto and their respective successors and permitted assigns.


14.3 Notices. Notices shall be in writing and will be deemed given when delivered in person, or when sent via electronic communication with confirmation or overnight courier with confirmed delivery, with a copy to legal@captio.com. The respective addresses of the parties for notice are set forth on the Order Form. Either party may change its notice address upon written notice to the other party.


14.4 Modifications. Captio reserves the right to change or modify any of the terms of this Agreement at any time, by posting the terms and conditions on […] or any other URL provided by Captio. The User is responsible for regularly consulting possible updates to the same. All changes or modifications made shall be binding (i) if User accepts them in writing, (ii) if the User accepts the updating of the terms and conditions online or if, (iii) when Captio has updated those terms, the User continues to use the Software.


14.5 Waiver and Severability. A waiver of any breach of the Agreement is not deemed a waiver of any other breach. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.


14.6 Governing Law and Jurisdiction. Any action related to this Agreement shall be governed by and construed in accordance with the defendant’s domicile applicable laws, and any dispute arising in relation to this Agreement shall be settled exclusively through the courts in which the defendant is domiciled.


14.7 Publicity. Neither party shall use the name of the other party in publicity activities without the prior written consent of the other. However, Captio may use Customer’s name in customer listings (reference listings) or at times mutually agreeable to the parties, as part of Captio’s marketing efforts (including reference calls and stories, press testimonials, and site visits).


14.8 Export Compliance. Captio’s Confidential Information is subject to export control laws of various countries, including the laws of the United States. Customer will not submit Captio’s Confidential Information to any government agency for licensing consideration or other regulatory approval, and will not export Captio Confidential Information to countries, persons, or entities if prohibited by export laws.


14.9 Force Majeure. If a party’s performance of any of its obligations (other than payment of Fees) pursuant to the Agreement is delayed or prevented by any cause beyond a party’s reasonable control, including without limitation fire, flood, earthquake, extreme adverse weather, strike, civil disorders, government or military authority action, act or war or terrorism, act of God, pandemic or other similar causes (each, a “Force Majeure Event”), then such party shall be excused for such delay or non-performance, as applicable, of those obligations affected by the Force Majeure Event for as long as the Force Majeure Event continues. Such party shall use commercially reasonable efforts to recommence performance as soon as reasonably practicable.


14.10 Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between Captio and User in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representation, discussions, and writing (including any confidentiality agreements) are merged in and superseded by the Agreement. This Agreement may only be modified in writing signed by both parties, except as permitted under 5.1.


14.11 Counterparts and Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together as one instrument. Electronic signatures that comply with applicable law are deemed original signatures.