TripAdvisor WiFi is a service provided by Captini Inc. on behalf of TripAdvisor LLC.
This is a contract between you (the Customer) and us (Captini). It describes the services we will provide to you, the business terms and the conditions that the service should be used. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our products and services to you unless you agree to them.
By ticking the "I agree to the terms and conditions" box and purchasing a TripAdvisor WiFi Plan which is a subscription service, you are agreeing to these terms and conditions.
We periodically update these terms. If you have an active TripAdvisor WiFi subscription, we will let you know when we do via an email to your registered email address.
(a) "Collected Data" has the meaning ascribed to it in Section (a)(ii).
(b) “Customer Data” has the meaning ascribed to it in Section 6(b).
(c) “Effective Date” has the meaning ascribed to it in the preamble of this Agreement.
(d) “Services” means a web-based service for captive portal customization, data collection, aggregation, processing and visualization.
(e) “Hotspot” means a Wi-Fi enabled access point that is configured to facilitate the technical processing and transmission of Customer Data required to perform the Services as described above.
(f) “Subscription Account” means a subscription account issued by Captini to Customer pursuant to the terms and conditions of this Agreement.
(g) “Subscription Fee” means an amount charged in connection with Customer’s ongoing access to and use of the Services based on the Customers active Subscription Plan.
(h) “Subscription Plan” means the combination of Subscription Fee and Initial term selected by the Customer at the time of order. This will be one of the following: $99 - Monthly Subscription, $89 - Annual Subscription or $79 - 24 Month Subscription.
(i) “Term” means the term of this Agreement consisting of the initial term set out in the chart at the beginning of this Agreement and includes any subsequent renewals as provided for in this Agreement or as may be agreed to by the Parties in writing.
(j) “Early Termination Fee” means a one-time charge of $500 will be charged to the Customer in the event that the Customer terminates the 12-month or 24-month subscription prior to the end of the applicable subscription term.
2. Provision of the Services
(a) Setup of the Services. Conditional on Customer making commercially reasonable efforts to cooperate with the reasonable requests of Captini, including providing Captini required information and access to Customer Hotspot and third party systems in order for Captini to configure and integrate the Hotspot with the Captini platform, as required to provide the Services. Captini will issue a Subscription Account to Customer and allow Customer to use the Services in accordance with the terms and conditions of this Agreement.
(b) Customer Obligations in Respect of the Hotspot. Customer will not, and will not permit any other person to: (i) interfere with or prevent the operation of the Hotspot, (ii) remove the Hotspot from the location where it is installed, or (iii) modify, tamper with or disassemble the Hotspot, or attempt to do any of the above, without providing prior warning to Captini.
(c) Provision of the Services. Captini will: (i) provide to Customer basic support through the Captini website for the purchased Services at no additional charge as described more fully in Section 9 (Customer Support) below; and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, with minimal downtime, except for: (a) planned downtime and scheduled upgrades (as described more fully in Section 9 (Customer Support) below), or (b) any unavailability caused by circumstances beyond Captini’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Captini employees), Internet service provider failures or delays, or the unavailability or modification by third parties of third party sites.
(d) Provisioning of the Services. Captini may update the functionality and user interface of the Services from time to time in its sole discretion as part of its ongoing mission to improve the Services and customers’ use of the Services.
(a) License Grant by Captini. Subject to the terms and conditions of this Agreement, Captini grants to Customer a revocable, limited, non-exclusive and non-transferable license during the Term to permit Customer to access the Services over the Internet and through the then available standard interface for the Services.
(b) License Grant by Customer. Subject to the terms and conditions of this Agreement, including Captini’s confidentiality obligations, Customer grants to Captini a royalty-free, fully paid-up, worldwide license to access, collect, store and use the Collected Data solely to provide the Services to Customer.
(b) Disclaimer. As between Captini and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer understands that the uninterrupted operation of the Hotspot and the technical processing and transmission of Customer Data is fundamentally necessary to use of the Services. Therefore, Customer expressly consents to Captini’s storage of Customer Data, which will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Captini. Customer acknowledges and understands that Customer Data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Captini is not responsible for any Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across public networks not owned and/or operated by Captini, including, but not limited to, the Internet, third party websites, and your local network. Customer agrees that Captini is not in any way responsible for any interference with Customer’s use of or access to the Services or security breaches arising from or attributable to the Internet and Customer waives any and all claims against Captini in connection therewith.
(c) Suspension of Access. In addition to any other suspension or termination rights of Captini pursuant to this Agreement, certain extraordinary circumstances may require Captini to suspend or terminate (where appropriate), as determined in Captini’s discretion, Customer’s access to and/or use of, or otherwise modify, the Services and/or any component thereof, without notice in order to: (a) prevent damages to, or degradation of the integrity of, Captini’s network; (b) comply with any law, regulation, court order, or other governmental request or order; or (c) otherwise protect Captini from potential legal liability or harm to its reputation or business. Captini will use commercially reasonable efforts to notify Customer of the reason(s) for such suspension or termination action as soon as reasonably practicable. In the event of a suspension, Captini will promptly restore Customer’s access to the Services as soon as the event giving rise to the suspension has been resolved as determined in Captini’s discretion. Nothing contained in this Agreement will be construed to limit Captini’s actions or remedies or act as a waiver of Captini’s rights in any way with respect to any of the foregoing activities. Captini will not be responsible for any loss or damages incurred by Customer as a result of any termination or suspension of access to or use of the Services under this provision.
5. Customer Responsibilities
Customer’s Subscription Account, Captini will issue user identification and password (“User ID”) to Customer for each individual Customer wishes to have access to and use of the Services (each, a “User”). Customer may only identify its partners, shareholders, employees and contractors who, in each case, are bound by confidentiality restrictions at least as restrictive as this Agreement as Users. Users may only access and use the Service through their particular User ID. Customer will not allow Users to share their User ID with any other person. Customer is responsible for all activity occurring under their User IDs. Customer is responsible for all use of the Services by Users and for maintaining the confidentiality of their User ID and will promptly notify Captini of any actual or suspected unauthorized use of the Services. Captini reserves the right to replace any User ID if it determines it may have been used for an unauthorized purpose.
(b) Limitations. Customer agrees that it will not permit any Users or any other person to: (a) permit any person to access or use the Services other than the Users authorized under this Agreement; (b) modify, adapt, alter or translate any software underlying the Services (including the Local Software), except as expressly allowed hereunder; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Service to any other person; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or algorithms, structure or organization) of any software underlying the Services (including the Local Software); or (e) use or copy the any software underlying the Services (including the Local Software) except as expressly allowed hereunder.
(c) Customer Responsibilities. Customer agrees that Customer is responsible for the compliance by the Users with this Agreement and for the Users’ use of the Services, as well as for ensuring that the Users maintain the confidentiality of their User IDs. Customer agrees that Customer is responsible for all charges incurred by the Users with access to the Services. Customer agrees that Customer will not:
(i) use or permit the Users to use the Services except as permitted by this Agreement;
(ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than to the Users except as expressly contemplated by this Agreement;
(iii) use or permit the Users to use the Services to collect, transmit or process: (A) infringing, obscene, threatening, offensive, libellous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (B) any non-public or personally-identifiable data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity;
(iv) use or permit the Users to use the Services to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;
(v) continue to use the Services in a manner that interferes with or disrupts the integrity or performance of the Services following a notice from Captini of such use;
(vi) attempt to gain unauthorized access to the Services or its related systems or networks;
(vii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services;
(viii) use any data mining, robots or similar data gathering or extraction methods;
(ix) access the Services for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services; or
(x) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services.
6. Reservation of Rights.
(a) Rights Reserved by Captini. Other than the limited license and rights expressly granted by Captini to Customer under this Agreement, Captini expressly reserves all right, title and interest in and to
(i) the Services and all materials provided by Captini hereunder;
(ii) any and all data or information collected through the Hotspot(s) under this Agreement (the "Collected Data")
(iii) any update, adaptation, translation, customization or derivative work in respect of any of the foregoing subject matter in Section 6(a)(i) and Section 6(a)(ii), and
(iv) any and all intellectual property related to or associated with the subject matter described in Section 6(a)(i), Section 6(a)(ii) and Section 6(a)(iii) (other than, if applicable, any intellectual property is licensed by Captini from third party suppliers). that the Services and all materials
Reserved by Customer. Customer expressly reserves all rights in any data,
(b) Rights. Information records and files that Customer (or the Users) loads, transmits to or enters into the Service, and including all results from processing such data, including compilations, and derivative works thereof, but excluding, for greater certainty, the Collected Data (the “Customer Data”), subject to the license that Customer grants Captini in accordance with the provisions of this Agreement, and provided that Customer does not acquire any intellectual property rights in the Services or any elements thereof.
(c) Confirmation. Customer acknowledges and agrees that the Services and all materials provided by Captini hereunder are licensed on a subscription basis and not “sold” to Customer.
7. Customer Data
(a) Responsibility. Customer has sole responsibility for the accuracy, appropriateness and completeness of all Customer Data. Captini will use the Customer Data it is provided in performing the Services and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Customer Data.
(b) Third-Party Disclosures and Consents. Customer is solely responsible for obtaining all necessary third party consents and making all required third party disclosures in accordance with applicable law (including applicable provincial and federal privacy laws) regarding data or information (including any personally-identifiable information) collected by Captini through the Hotspot from third parties.
(c) Restrictions. Customer agrees not to upload or transmit any Customer Data: (i) that Customer does not have the lawful right to copy, transmit, distribute, and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); (ii) for which Customer does not have the consent or permission from the owner of any personally identifiable information contained in the Customer Data; (iii) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights or violates any privacy rights of any third party (including, without limitation, any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; or (vi) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability.
(d) Indemnity. Customer agrees to defend, indemnify and hold harmless Captini, its employees, officers, directors and affiliates against any and all liability (including damages, recoveries, deficiencies, interest, penalties and reasonable attorney’s fees) to third parties (including, but not limited to, any clients relating to: (a) Customer Data, (b) Customer’s responsibilities and obligations. (c) Customer’s breach of any of its obligations, representations or warranties under this Agreement; (d) the operation of the Hotspot while on Customer’s premises; or (e) use or receipt of the Services by Customer or third parties on Customer’s behalf, including in combination with any third party software, application or service.
This Agreement will commence on the Effective Date and continue for the duration of the selected Subscription Plan (the “Initial Term”). Unless either Party gives thirty (30) days advance written notice to the other Party prior to the expiry of the Initial Term or each subsequent renewal term, as applicable, indicating that it does not wish to renew the Agreement, the Agreement will automatically renew for subsequent additional terms of the same duration on the terms and conditions expressed herein.
9. Customer Support
Captini will provide the following standard customer support to Customer:
(a) Web Support. Customer will have access to Captini’s technical support web site and may use the web site to submit service requests. Web support will not include, and Captini will not provide, any professional or expert advice of any kind. Captini will use commercially reasonable efforts to correct any reproducible failure of the Services to substantially conform to its expected operation; provided, however, that Captini will not be required to provide a correction for all such nonconformities.
(b) Service Upgrades and Scheduled Downtime. Captini may update the Services in its sole discretion. Captini may from time to time schedule downtime for maintenance and upgrades.
10. Fees and Payment
(a) Subscription Fee. Customer will pay to Captini the Subscription Fee each period per the frequency set out in the Plan selection of the order screen, Captini will invoice and charge the Customer credit card for the Subscription Fee in respect of each period on the first day of such period.
(b) All payments will be charged automatically by Captini agains the Customer payment card registered at the time of purchase. Captini will supply a an invoice via the Captini online dashboard and via email to the registered Customer email address.
(c) Late Payment. Customer may not withhold or “setoff” any amounts due under this Agreement. Captini reserves the right to suspend Customer’s access to the Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less) per month or fraction thereof until fully paid.
(d) Certain Taxes. Fees and charges quoted in this Agreement do not include, and Customer shall pay, indemnify and hold Captini harmless, from all sales, use, gross receipts, value-added, GST/HST, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Captini.
11 Hotspot Maintenance and Return
(a) Use. Customer may use the Hotspot on its premises as long as it continues to actively use the Captini Services under this Agreement, until Captini replaces it with another Hotspot or either party terminates Customer’s use of the Hotspot. Captini shall at all times retain ownership of the Hotspot.
(b) Returning the Hotspot. Customer may return the Hotspot back to Captini at any time in the same condition as the Hotspot was when Captini provided it to Customer, less reasonable wear from usage.
(c) Damage to the Hotspot. If the Hotspot becomes damaged or malfunctions, Customer will need to call Customer’s Account Manager who can try to resolve the issue with Customer. If necessary, Customer’s Account Manager can arrange to have another Hotspot expedited to the Customer within a target of 2 to 4 business days for $199.00 (plus any requisite sales tax). Customer’s Account Manager will also arrange to have Customer’s old Hotspot sent back to our warehouse. If it turns out the damage or malfunction is covered under a warranty, then Captini will refund Customer’s $199.00 (plus any requisite sales tax collected).
(d) Stolen or misplaced Hotspots. If the Hotspot is stolen or lost, then Customer is financially responsible for replacing the Hotspot for $199.00, plus any applicable sales taxes. Captini will assess the $199.00 against the Customer’s credit card on file, or recover the cost in another manner. For a replacement Hotspot, Captini will arrange with the Customer to send the Customer a preloaded replacement Hotspot. Captini will aim to deliver the Hotspot to Customer within 2 to 4 business days, and upon termination of the subscription that relates to that Hotspot, Customer must either return the Hotspot to Captini or purchase it as set forth below.
(e) Keeping the Hotspot. Unless otherwise prohibited by Captini, Customer will be allowed to keep the Hotspot if and when Captini is able to collect $199.00 (plus any requisite sales tax) as authorized by the Customer from its credit card for each Hotspot the Customer wants to keep. But please note, the Hotspot may not function correctly without the Service. Captini still retains the right to wipe all of the software on the Hotspot and reset the Hotspot to its factory settings.
(f) Return of Hotspot after Termination. Upon termination of this Agreement, Captini will send Customer a shipping box to return the Hotspot to Captini with a pre-paid and pre-addressed shipping label, or as otherwise required by Captini. Customer must ship the Hotspot to Captini to the pre-addressed location within 7 days after the termination of its Captini this Agreement. The date of shipment is the date that the Customer hand over the boxed and pre-addressed Hotspot to the shipper/carrier designated on the pre-addressed shipping label, as indicated in the carrier's shipping document.
PLEASE NOTE: IF CUSTOMER DOES NOT SHIP THE HOTSPOT TO CAPTINI BY THE END OF THE 7TH DAY AFTER THE TERMINATION OF CAPTINI AGREEMENT, CUSTOMER AUTHORIZES CAPTINI TO CHARGE $199.00 AGAINST ITS SUBMITTED PAYMENT CARD (PLUS ANY REQUIRED SALES TAX, IF APPLICABLE), AND CUSTOMER WILL RETAIN POSSESSION AND OWNERSHIP OF THE HOTSPOT ONCE THE CHARGE HAS FINALLY BEEN FINALIZED BY THE CUSTOMER’S PAYMENT CARD COMPANY.
12 Confidential & Proprietary Information
Definitions. For purposes of this section, Customer will be the “Recipient”, Captini will be the “Discloser”, and “Confidential & Proprietary Information” includes all information disclosed by Discloser to Recipient during the Term of this Agreement and marked as “confidential” or “proprietary” or which a reasonable person would understand to be confidential or proprietary; provided that (i) all parts of the Service, whether marked as “confidential” or “proprietary” or not, and (ii) the terms of this Agreement will be considered to be Captini Confidential & Proprietary Information; provided, however, that Discloser’s Confidential & Proprietary Information does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential & Proprietary Information; (ii) information that is publicly available through no wrongful act of Recipient, or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. Covenant. Recipient hereby agrees that during the Term and at all times thereafter it shall not (i) disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend. Recipient shall use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event shall less than due diligence and reasonable care be exercised. Each party will be deemed to have fulfilled its confidentiality obligations under this Section 12 (Confidential & Proprietary Information ) if it affords the other party’s Confidential & Proprietary Information at least the same degree of care it takes in protecting its own confidential information from unauthorized disclosure (but in no event using less than a reasonable degree of care). Upon the earlier of Discloser’s written request or termination or expiration of this Agreement, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential & Proprietary Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order. Injunctive Relief. Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
13 Warranties and Disclaimers.
(a) Customer Warranty. Customer represents and warrants that Customer will use and receive the Services in accordance with applicable law, including applicable provincial and federal privacy legislation.
(b) Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 13 (WARRANTIES AND DISCLAIMERS) THE SERVICES, THE HOTSPOT AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY CAPTINI TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. CAPTINI HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. CAPTINI DOES NOT WARRANT THAT THE SERVICE OR THE HOTSPOT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.
14 Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) Amount. EXCEPT FOR INDEMNITIES EXPRESSLY PROVIDED FOR IN THIS AGREEMENT AND SUBJECT TO SECTION 14(c), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF CAPTINI IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES AND CHARGES COLLECTED BY CAPTINI UNDER THIS AGREEMENT. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL CAPTINI’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) Type. IN NO EVENT SHALL CAPTINI BE LIABLE TO CUSTOMER FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL CAPTINI BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
(c) THE PROVISIONS OF SECTIONS 14(a) AND 14(b) SHALL NOT BE APPLICABLE TO THE EXTENT THAT THE CAUSE OF ACTION GIVING RISE TO THE CLAIM ARISES DIRECTLY FROM:
(i) CUSTOMER’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT; OR
(ii) A BREACH OF CUSTOMER’S OBLIGATIONS UNDER SECTION 12.
Notices sent to either Party shall be effective when delivered in person or by email, one (1) day after being sent by overnight courier, or two (2) days after being sent by first class mail postage prepaid to the official contact designated below and immediately after being received by the other party’s server. Notices must be in writing and sent to the respective email or postal address set out in the chart at the beginning of this Agreement. Captini may change its contact information by giving notice of such change to the Customer. Customer may change its contact information by giving notice of such change to Captini.
(a) On Notice. Either Party can terminate this Agreement at any time by providing the other Party with thirty (30) day notice of termination, provided, however, that if Customer terminates this Agreement prior to the expiry of the Initial Term, Captini will not refund any Subscription Fees paid by Customer.
(b) In the event that the Customer subscribes to a 12-month plan or 24-month plan and chooses to terminate this agreement prior to the subscription term then a Early Termination Fee will apply as detailed in clause 1j of this agreement.
(c) Generally. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party breaches any material provision thereof and fails within fifteen (15) days after receipt of notice of default to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion. Either Party shall be in default hereof if it becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed or a petition in bankruptcy is filed with respect to the Party and is not dismissed within thirty (30) days.
(d) Survival. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both Parties (except for Customer’s payment of all sums then owing, including any Subscription Fees), including all licenses granted hereunder, shall immediately terminate except as provided below; (b) within thirty (30) days after the effective date of termination, each Party shall comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth Section 12 (Confidential & Proprietary Information). The following Sections will survive expiration or termination of this Agreement for any reason: Section 6 (Reservation of Rights), Section 7 (Customer Data), Section 12 (Confidential & Proprietary Information), Section 13 (Warranties and Disclaimers), Section 14 (Limitation of Liabilities), Section 16(c) (Survival), and Section 17 (General Provisions).
17 General Provisions.
(a) Assignment. Neither Party may assign this Agreement to any third party without the other Party’s prior written consent, except this Agreement may be assigned by either Party (i) to any party that controls, is controlled by, or is under common control with such Party, or (ii) pursuant to a transfer of all or substantially all of such Party’s business or assets, whether by merger, sale of assets, sale of stock, or otherwise. Any assignment in violation of this section shall be void. The terms of this Agreement shall be binding upon permitted assignees.
(b) Choice of Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the substantive laws of England and Wales applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in London, United Kingdom, and irrevocably consent to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
(c) Right to List As A Customer. Customer agrees that Captini may utilize Customer’s entity name in listings of current customers. Use of Customer’s name in any other marketing materials or press announcements will be submitted to Customer in advance for approval, and such approval will not be unreasonably withheld.
(d) Compliance with Export Regulations. Customer has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold Captini harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Customer shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.
(e) Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The term “including” means “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
(f) Force Majeure. Neither Party shall be liable for delays caused by events beyond its reasonable control, except non-payment of amounts due hereunder shall not be excused by this provision.
(g) Severable. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect.
(h) Waiver. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occasions.
(i) Independent Contractors. Customer’s relationship to Captini is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Captini.
(j) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. 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 and deemed to be one instrument. (k) Amendments. No amendment, supplement, modification, waiver or termination of this Agreement and, unless otherwise specified, no consent or approval by any Party, shall be binding unless executed in writing by the Party or Parties to be bound thereby. Any waiver by one Party of any default by the other Party will not affect or impair any rights of the first Party arising from any subsequent default by that other Party.×