Welcome to CAPTYR Inc. Please read these Terms of Use (“Terms”) carefully. They contain the legal terms and conditions that govern your use of and access to our websites, mobile sites, and mobile applications (collectively, our “Sites and Apps”), as well as our provision of products and services. Certain services, promotions and features may have additional terms and conditions, and those additional terms and conditions are incorporated herein by reference.

By visiting any of our Sites and Apps, you are signifying your assent to these Terms and our 

THESE TERMS OF SERVICE (THIS “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN CAPTYR INC. (“CAPTYR”) AND YOU, EITHER AS AN INDIVIDUAL OR AN ENTITY (“YOU” OR “YOUR”), REGARDING THE SERVICE OR SERVICES (AS DEFINED BELOW). BY DOWNLOADING, INSTALLING, ACCESSING OR USING THE SERVICE, YOU EXPRESSLY: (A) ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT IN ITS ENTIRETY, AND (B) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND BE HELD LIABLE FOR ANY NONCOMPLIANCE WITH THIS AGREEMENT.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SERVICE.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A THIRD PARTY, COMPANY, ORGANIZATION OR ANOTHER LEGAL ENTITY (EACH AN “ENTITY”), YOU ARE ENTERING INTO THIS AGREEMENT FOR THAT ENTITY AND YOU REPRESENT TO CAPTYR THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “YOU” OR “YOUR” AS USED HEREIN WILL ALSO REFER TO SUCH ENTITY AND ITS AFFILIATES.  PLEASE NOTE THAT THESE TERMS INCLUDE A CLASS-ACTION WAIVER AND WAIVER OF JURY TRIALS. 

YOUR USE OF OUR SITE AND APP

You may access and use our Site and Aps solely for your personal, noncommercial use. Except as expressly authorized hereunder, our Site and App may not be reproduced, duplicated, copied, sold, resold, visited, reverse-engineered or otherwise exploited for any commercial purpose without our prior written authorization. We reserve the right to alter or discontinue our Site and App, in whole or in part, at any time in our sole discretion.

Subject to and conditioned upon your compliance with these Terms, we grant to you a non-exclusive, non-transferable, limited right and license, without right of sublicense, to access and use our Site and App, including any images, text, graphics, sounds, data, links and other materials incorporated into our Site and App (other than your User Submitted Materials as defined below), solely as made available by us and solely for your own personal purposes. Except as expressly authorized by these Terms, you may not use, reproduce, distribute, modify, transmit or publicly display any portion of our Sites and Apps or create derivative works of any portion our Site and App without our written consent. While using any of our Site and App, you agree not to:

YOUR USE OF OUR SITE AND APP

You may access and use our Site and App solely for your personal, noncommercial use. Except as expressly authorized hereunder, our Site and App may not be reproduced, duplicated, copied, sold, resold, visited, reverse-engineered or otherwise exploited for any commercial purpose without our prior written authorization. We reserve the right to alter or discontinue our Site and App, in whole or in part, at any time in our sole discretion.

If you fail to comply with the above rules, such failure will constitute a violation of these Terms, and in addition to any other rights or remedies we may have, we may immediately terminate your access to and use of our Site and App.

Some features of our Site and App may enable you to send and receive transmissions. You acknowledge that we have no responsibility or liability for any transmissions, and/or any content included in such transmissions, sent or received by you. We reserve the right, in our sole discretion and at any time, to set limits on the number and size of any transmissions sent by or received through our Site and App and/or the amount of storage space available for transmissions or for any feature made available through our website.

Please be aware that orders for personalized postage will only be shipped to the United States Territories. Qualified Orders will also be shipped to United States military personnel at APO/FPR addresses worldwide.

The following guidelines have been established by the U.S. Postal Service governing images which are restricted from appearing on customized postage:

YOUR MEMBER ACCOUNT

You may create a member account with any of our Sites and Apps by registering your name, providing certain information about yourself, and creating a password. You agree that you will provide complete, current and accurate information about yourself as requested, and that you will keep that information up to date. You are responsible for safeguarding the confidentiality of your username and password that you use to access your member account on our Sites and Apps. You agree not to disclose your username or password to any third party. YOU AGREE THAT YOU ARE SOLELY AND FULLY RESPONSIBLE FOR ANY ACTIVITIES OR ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIVITIES OR ACTIONS. You will immediately notify us of any unauthorized use of your account on any of our Sites and Apps.

In order to create a member account with any of our Sites and Apps, you must be at least 18 years of age. You represent to us that you are at least 18 years old. If you are not, please do not set up an account with any of our Sites and Apps.

MAKING PURCHASES

If you wish to purchase any products or services through any of our Site and App, we will ask you to supply certain information applicable to your purchase, including, without limitation, payment and other information. Any such information will be treated as described in our Private Policy. 

Descriptions, images, references, features, content, specifications, products, price and availability of any products or services are subject to change without notice, and our current prices can be found on our Sites and Apps. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services on our Sites and Apps at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased through our Sites and Apps. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all purchase(s); and/or to refuse to provide any user with any product or service.

Title and risk of loss for any purchases pass to you upon our delivery to our carrier. When you place an order, we will not charge you until we ship the items ordered. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment.

GENERAL CONDITIONS

1. To use this on-line custom design and photobook Service (the “Service”) accessed at www.captyr.com (the “Site”), You must register an account with CAPTYR. 

2. You may connect to the Service using any Internet browser and/or a CAPTYR mobile application. This Service is intended for use by adults at least 18 years of age.  You are responsible for:

3. You are responsible for obtaining access to the Internet and the equipment necessary to use the Service.  If You use Your Facebook, Instagram iPhone Favorites or other photo source login(s) to register Your account, You are authorizing us to access certain information in Your Facebook and/or Instagram account.  

4. Subject to Your compliance with the terms of this Agreement, CAPTYR grants you a personal, limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access and use the Service during the term of this Agreement, whether accessed via an Internet browser, smartphone, tablet or other device: (a) solely in object code form; and (b) solely via a device that meets the minimum technical requirements necessary to run the Service (as determined by CAPTYR).  CAPTYR, in its sole discretion, may make updates, upgrades or other new releases of the Service available to You.  

5. CAPTYR will employ reasonable measures to provide You with access to the Service.  However, there will be occasions when the Service will be interrupted for maintenance, upgrades for CAPTYRs’ reasonable control.  When possible, CAPTYR will take reasonable steps to minimize such disruptions within CAPTYRs’ control.

6. CAPTYR may, in its sole discretion, change, modify, add, or remove portions, features or functions from the Service, or suspend or discontinue the Service or any portion thereof (temporarily or permanently and whether pursuant to a modification of the Service or otherwise), without notice or liability to You or to any third party (except that, in the event of a complete discontinuation or scheduled suspension of the Service, CAPTYR will use reasonable efforts to provide You with actual notice, rather than merely constructive notice, as soon as commercially practicable under the circumstances). You agree that CAPTYR shall not be liable to You for any modification, suspension or discontinuance of the Service or any features or functions thereof.

7. The Service may contain or require the use of open-source software, public-source software, “copyleft” software, shareware, freeware and similar software, and other thirdparty software or materials, which in each case is embedded in the Service or provided by CAPTYR in connection with the Service (“Separately Licensed Software”).  Your use of Separately Licensed Software is governed by the separate license terms specified by CAPTYR.  This Agreement does not apply to Separately Licensed Software, and CAPTYRs hereby disclaims all warranties with respect to any Separately Licensed Software and disclaims any liability to You or any third party based on any claims arising out of use of Separately Licensed Software.  Nothing in this Agreement limits an end user’s rights under, or grants the end user rights that supersede, the terms of any applicable Separately Licensed Software end user license agreement. 

MATERIALS SUBMITTED BY CUSTOMER

Any materials submitted by you, including, without limitation, photographs, videos, images, text, graphics and other materials (collectively, “User Submitted Materials”) are subject to the following terms and conditions:

You will retain ownership of such User Submitted Materials, and you grant us and our designees a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of sublicense (through multiple tiers), to use, reproduce, distribute (through multiple tiers), create derivative works of and publicly display such User Submitted Materials solely in connection with the production or provision of any product or service you request or to show you how your User Submitted Materials would appear in our products or services. For example, when you place an order for a product, we will prepare, manipulate (if necessary), and transmit the User Submitted Materials for production, packaging and shipment. Similarly, if you want to share a photo book with your friends and family, we will accommodate your request by making your photographs available to your friends and family to download and/or to use and create projects of their own, and to purchase products with those photographs.

Please note that, while you retain ownership of your User Submitted Materials, any template or layout in which you arrange or organize such User Submitted Materials through tools and features made available through any of our Sites and Apps are not proprietary to you, and the rights to such template or layout will remain with us.

You represent and warrant that you own or otherwise possess all necessary rights with respect to the User Submitted Materials, and that the User Submitted Materials do not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trademark, trade secret right or other intellectual property or other property right of any third party, and that the User Submitted Materials are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene, confusingly similar to brands or branded products sold by others or otherwise objectionable.

You consent to the use of your likeness, and you have obtained the written consent, release, and/or permission of every identifiable individual who appears in User Submitted Materials to use such individual’s likeness, for purposes of using and otherwise exploiting the User Submitted Materials in the manner contemplated by these Terms, or, if any such identifiable individual is under the age of eighteen (18), you have obtained such written consent, release and/or permission from such individual’s parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request). If you do submit a submission that contains the likeness of an identifiable individual under the age of eighteen (18), we strongly encourage you not to include any identifying information (such as the individual’s name or address) with such User Submitted Materials.

You agree that we may (but are not obligated to) filter any User Submitted Materials (including, without limitation, deleting or replacing expletives or other harmful or offensive language), refuse to use any User Submitted Materials (including, without limitation, suspending processing and shipping of any order relating to any User Submitted Materials) and/or disclose any User Submitted Materials and the circumstances surrounding the use thereof, to any third party in order to provide the applicable products or services, to enforce these Terms or to comply with legal obligations or governmental requests.

You agree to indemnify and hold us, our directors, officers, shareholders, employees, contractors, agents, representatives, affiliates, and third party users harmless from and against any and all claims, causes of action, liabilities, damages, losses, expenses and costs (including, without limitation, attorneys’ fees) that arise directly or indirectly out of or from: (i) your violation of these Terms, any other agreement or terms of use with us, any representation or warranty contained herein or therein or any applicable law; (ii) your User Submitted Materials; (iii) your activities in connection with obtaining any products or services from us, or (iv) any activity related to access to or use of your account by you or any other person.

User Submitted Materials that violate these Terms may be removed from our Sites and Apps; provided, however, that we have no obligation to remove User Submitted Materials in response to user reports or requests. We are not responsible for, and will have no liability for, the removal, non-removal or loss of any User Submitted Materials from our Sites and Apps. We recommend you keep back-up copies of your User Submitted Materials on your hard drive or other personal system.


PRIVACY AND DATA

1. All information CAPTYR collects through the Service is subject to CAPTYRs’ Privacy Policy available at www.captyr.com/privacy-policy/.  

2. CAPTYR or third parties may make available third-party products or services for use in connection with the Service. Your acquisition of any such third-party products or services, and any exchange of data between You and any third party, is solely between You and such third party. The Service may contain links to other websites or services offered and operated by third parties. Such links are provided for Your convenience only, and if You access any other websites or services linked to the Service, You do so at Your own risk. Such third-party websites and services are subject to their own terms of use and privacy policies. Links to other websites or services do not constitute CAPTYRs’ endorsement of any content, advertising, products, services, or other materials on or available from such websites or services.  

3. If You provide any suggestions, enhancement requests, recommendations, comments or other feedback (“Feedback”) relating to the Service to CAPTYR, You agree that CAPTYR and other authorized entities may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback in connection with the Service, other related technologies and/or for any other purpose, on a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual basis. CAPTYR will not be obligated to implement any Feedback or correct any defects, bugs or errors in the Service identified in the Feedback or otherwise. 

4. CAPTYR may: (a) compile statistical and other information related to the performance, operation, and use of the Service, and (b) use Your Data (including photos and/or videos) from the Service in aggregated form to create statistical analyses and for research and development purposes, (these sections (a) and (b) collectively, “Service Analyses”).  CAPTYR may use Service Analyses for its business purposes; however, Service Analyses shall not incorporate Data in a form that could serve to identify You or any individual.  Service Analyses do not constitute Your Data, and CAPTYR shall retain all right, title, and interest in and to Service Analyses, including all Intellectual Property Rights therein and thereto. 

5. During and after the term of this Agreement, CAPTYR may: (a) collect, retain and use any Data submitted to the Service, including usage history, in order to provide and administer the Service; however, CAPTYR is not responsible for maintaining such Data, except as required by Law; and (b) access, read, preserve, and disclose any Data submitted to the Service that CAPTYR reasonably believes is necessary to: (i) satisfy any Law, legal process or governmental request; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to a support request; or (v) protect its rights, property or safety, and that of its users and the public.

INTELLECTUAL PROPERTY NOTICES

Portions of our Site and App are covered by the U.S. Patents listed here and by other issued U.S. patents and pending U.S. patent applications. Our Sites and Apps are ©CAPTYR, Inc. All rights reserved.

All trademarks and service marks on any of our Sites and Apps not owned by us are the property of their respective owners. CAPTYR owns the registered trademarks and logos listed here. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on any of our Sites and Apps should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.

RIGHTS AND RESTRICTIONS

1. You may use the Service solely for its intended purpose as set forth on the Site and in any documentation provided by CAPTYR for the use of the Service. You may not: share Your Registration Data for the Service with any other individual or allow any third party to access or use the Service (except that You are permitted to engage with other individuals who also hold a valid right to access and use  the Service.

2. You may not; (a) sell, resell, license, sublicense, distribute, rent or lease the Service, including the Service in a service bureau or outsourcing offering, or otherwise access or use the Service other than as expressly permitted hereunder; (b) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or other rights; (c) use the Service to store or transmit code, files, scripts, agents or programs intended to do harm including, for example, viruses, worms, time bombs and Trojan horses; (d) interfere with, or disrupt the integrity or performance of, the Service or third-party data contained therein; or (e) attempt to gain unauthorized access to the Service or its related systems or networks. 

3. You agree that you may not copy the Service or any part, feature, function or user interface thereof or otherwise: (a) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Service; (b) frame or mirror any part of the Service, other than framing on Your own intranet or otherwise for Your own internal business purposes or as permitted in the documentation for the Service; (c) access the Service in order to build a competitive product or service, or for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (d) “harvest” or collect information from the Service (including information about other users of the Service or offerings, products or services available on the Service) using an automated software tool or manually on a mass basis; (e) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Service or any component thereof, in whole or in part, except as and only to the extent such restriction is permitted by any applicable federal, state, or local laws, codes, rules, regulations, or orders of any governmental authority (“Law”); (f) integrate or link to any open source software or freeware with the Service; (g) remove any proprietary notices, labels or marks from the Service; or (h) permit third parties to do any of the foregoing.

4. You are not permitted to:  (i) transfer or otherwise make the Service available to any third party; (ii) provide any service based on the Services without prior written permission; (iii) post links to third-party sites or use their logo, company name, etc. without their prior written permission; or (iv) use the Service for spamming and/or other illegal purposes.

5. You agree that: (a) Your submission and the use of any Data in connection with the Service will be in compliance with Law; and (b) You will not upload  any Data to the Service or print any Data using the Service that depicts violence, nudity, partial nudity or is unlawful, sexually suggestive, pornographic, offensive, discriminatory, threatening, libelous, defamatory, obscene, or otherwise violates any third party’s rights, including Intellectual Property Rights and/or privacy rights, or that violates this Agreement.

PAYMENT TERMS

1. Your use of the Service may be purchased on a one-time basis or on an on-going basis and You will be charged upon the completion of each photobook (minimum of sixty (20) pages) at CAPTYR; then-current pricing.  All applicable fees will be charged to the credit card last used by You (the “Fees”).  If Your credit card cannot be charged and no other credit card is on file with CAPTYR, CAPTYR will terminate your access to the Service.  

2. CAPTYR offers a 100% money back if You are not satisfied with the Service. The Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties.  You will be billed, and payments will be made, in U.S. dollars.    

3. CAPTYR may increase the Fees from time to time, in its sole discretion. In addition, CAPTYRs reserves the right to charge for use of Services that are currently available free of charge.  You will not be charged for using any Service unless You have opted in to pay for such Service. 

TERMINATION

1. This Agreement will remain in effect until: (a) CAPTYR terminates Your rights under this Agreement, which it may do immediately, without notice or liability, if You fail to comply with any term(s) of this Agreement; or (b) You cancel the Service, whichever occurs first.  You may terminate Your access to the Service by submitted a request to CAPTYRs’ customer support department.

2. You acknowledge that if You breach this Agreement, CAPTYR may have no adequate remedy at law, will suffer irreparable harm as a result of such a breach, and therefore will be entitled to injunctive relief without the obligation of posting a bond.  Upon any termination of this Agreement: (a) You agree to immediately cease using the Service; and (b) Your access to the Service will be automatically terminated and Registration Data will be removed.  Upon cancellation or termination of this Agreement, CAPTYR may immediately delete or destroy all Data that You have uploaded, submitted or entered into the Service, subject to requirements of Law.  Upon the termination of this Agreement for any reason, each party will be released from all obligations to the other arising after the date of expiration or termination, except that provisions which by their nature should survive termination will survive, including use restrictions, indemnity obligations, warranty disclaimers, and limitations of liability. 

DISCLAIMERS AND WARRANTIES

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND.  CAPTYR EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

CAPTYR DOES NOT WARRANT THAT THE SERVICE WILL: PERFORM ERROR-FREE OR WITHOUT INTERRUPTION; MEET ANY PERFORMANCE OR RELIABILITY STANDARDS; BE FREE FROM BUGS, VIRUSES, HARMFUL CODE, ERRORS, OR OTHER PROGRAM OR SYSTEM LIMITATIONS (OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED); MEET YOUR REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; OR BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES.  CAPTYR SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO YOU FOR DOWNTIME OF THE SERVICE, ANY BREACH OF DATA SECURITY, OR ANY PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE RESULTING FROM USE OF THE SERVICE, FAILURE OF THE SERVICE, OR OTHERWISE RELATING TO THE SERVICE.

USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE SERVICES SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE DEVICE, OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM CAPTYR, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.  

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CAPTYR WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND REGARDLESS OF LEGAL THEORY, INCLUDING DAMAGES FOR COMPUTER MALFUNCTION, LOST PROFITS, LOSS OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, AND/OR THE COST TO OBTAIN SUBSTITUTE SOFTWARE OR SERVICES ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE USE OF (OR INABILITY TO USE) THE SERVICE, HOWEVER CAUSED AND WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF CAPTYR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL CAPTYRS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE GREATER OF THE AMOUNT ACTUALLY PAID TO CAPTYR FOR YOUR LICENSE TO THE SERVICE DURING THE LAST MONTH PRECEDING THE DATE THE CLAIM AROSE, OR PRORATED IF PAID ANNUALLY, OR U.S. $100.00.  THE ABOVE LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER AN ACTION IS IN CONTRACT OR TORT, REGARDLESS OF THE THEORY OF LIABILITY, AND EVEN IF A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF CAPTYR AND ITS REPRESENTATIVES IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES UNDER THESE TERMS OF SERVICE FAIL OF THEIR ESSENTIAL PURPOSE. 

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE SERVICE, THIS AGREEMENT OR ANY ORDER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. 

INDEMNIFICATION

You agree to indemnify, hold harmless and defend CAPTYR, including its licensees and their subsidiaries, affiliates, officers, directors, agents, employees, successors and assigns, from and against any and all liabilities, losses, fines, penalties, damages, judgments, awards, settlements, costs, and expenses (including reasonable attorneys’ fees and costs of investigation) arising out of or resulting from any claim, suit, action, demand or proceeding arising out of: (a) Your use or misuse of the Service; or (b) Your violation of the terms of this Agreement.  CAPTYR reserves the right, at our own expense, to assume the exclusive defense and control of any action subject to indemnification by You, in which event You agree to cooperate with CAPTYR in defending such action. Your indemnification, defense, and hold harmless obligations will survive the termination of Your use of the Site, the Service and/or this Agreement.

EXPORT CONTROL LAWS

The Service is subject to export controls under the laws and regulations of the United States (“U.S.”) and any other applicable countries’ laws and regulations.  You agree to comply with such laws and regulations governing export, re-export, transfer and use of the Service, and You shall obtain all required U.S. and local authorizations, permits, or licenses.  You represent and warrant that:  (a) You are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) You are not listed on any U.S. Government list of prohibited or restricted parties.  

GOVERNING LAW; VENUE

This Agreement and any dispute or claim arising out of or related to this Agreement, its subject matter, or its formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement, the Site or the Product shall be instituted exclusively in the federal or state courts located in Los Angeles, California, and You further agree that such courts shall have in personam jurisdiction and venue with respect to You, and You hereby submit to the jurisdiction and venue of such courts and waive any objection.  YOU HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT. ADDITIONALLY, BOTH YOU AND CAPTYR AGREE THAT EACH PARTY MAY ONLY BRING CLAIMS AGAINST THE OTHER PARTY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.

COMPLETE AGREEMENT

This Agreement constitutes the entire agreement binding between You and CAPTYR with respect to Your use of the Site and the Service and supersedes all prior or contemporaneous understandings, whether written or oral, regarding such subject matter.  CAPTYR reserves the right, in its sole discretion, to modify this Agreement at any time upon notice to You, including by posting a revised version of this Agreement on the Service.  Any such modified Agreement will be effective immediately upon being made available to You, and your continued use of the Service thereafter constitutes Your affirmative acceptance of such modified Agreement. Otherwise, the terms of this Agreement may not be modified, in whole or in part, except by written agreement executed by an authorized signatory of CAPTYR.  If You are dissatisfied with the terms of the Agreement or any modifications thereof, then You agree that Your sole and exclusive remedy is to discontinue any use of the Service.

MISCELLANEOUS

Any remedy of CAPTYR set forth in this Agreement is in addition to any other remedy afforded to CAPTYR under applicable Law or otherwise.  CAPTYRs’ failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.  If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by Law) or by disregarding it (if not).  If an unenforceable provision is modified or disregarded in accordance with this Section, the rest of the Agreement is to remain in effect as written, and the unenforceable provision is to remain as written in any circumstances other than those in which the provision is held to be unenforceable.  You may not assign or otherwise transfer any of Your rights or obligations under this Agreement without CAPTYRs’ prior written consent.  Any purported assignment in violation of this Section shall be void.  CAPTYR may freely assign or otherwise transfer its rights or obligations under this Agreement.  The terms and conditions of this Agreement shall apply to, and be binding upon, the approved successors and permitted assigns of the parties hereto.  The parties are independent contractors.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.  This Agreement does not and is not intended to confer any rights or remedies upon any person other than You and CAPTYR.  For all purposes of this Agreement, the words “including” and “includes” mean inclusion without limitation. Communications and Contacting CAPTYR Communications from CAPTYR to You may be by electronic means.  You hereby consent to receiving communications from CAPTYR in electronic form and agree that all terms and conditions, agreements, notices, disclosures, and other communications that CAPTYR provides to You electronically satisfy any legal requirement that such communications would satisfy if they were in writing, other than any nonwaivable rights.

The Service may include certain communications from CAPTYR, such as service announcements, administrative messages and newsletters.  You understand that these communications shall be considered part of using the Services.  As part of CAPTYRs’ policy to provide You total privacy, CAPTYR also provides You the option of opting out from receiving newsletters from us.  However, You will not be able to opt-out from receiving service announcements and administrative messages.

If You have any questions about the Site, the Service or this Agreement, You may email us at support@captyr.com