Last Updated Date: February 4, 2019
If you are accessing or using the Platform Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.
If you and Cape have entered into a separate, signed agreement concerning the Platform Services, the terms of such agreement shall govern over any conflicting terms in this TOU.
Unless you have a separate, signed agreement, this TOU constitutes the entire agreement between you and Cape with respect to your use of the Platform Services and may not be modified or amended except by an instrument in writing signed by both parties that expressly states that it modifies or amends this TOU. Cape may accept purchase orders from you for administrative convenience, but standard or general terms of any such purchase order shall have no effect. These terms become effective on the earliest of the date you place an order or register to use or gain access to the Platform Service (the “Effective Date”).
PLEASE BE AWARE THAT THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. IF YOU ARE AN INDIVIDUAL, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY SUBMITTING A WRITTEN REQUEST WITHIN 30 DAYS OF THE EFFECTIVE DATE TO THE FOLLOWING ADDRESS: 822 CASSIA ST., REDWOOD CITY, CA 94063, AND SUPPORT@CAPE.COM. YOUR NOTICE MUST INCLUDE YOUR NAME AND ADDRESS, YOUR USERNAME (IF ANY), THE EMAIL ADDRESS YOU USED TO SET UP YOUR ACCOUNT (IF YOU HAVE ONE), AND AN UNEQUIVOCAL STATEMENT THAT YOU WANT TO OPT OUT OF THIS ARBITRATION AGREEMENT. IF YOU OPT OUT OF THIS ARBITRATION AGREEMENT, ALL OTHER PARTS OF THIS AGREEMENT WILL CONTINUE TO APPLY TO YOU. OPTING OUT OF THIS ARBITRATION AGREEMENT HAS NO EFFECT ON ANY OTHER ARBITRATION AGREEMENTS THAT YOU MAY CURRENTLY HAVE, OR MAY ENTER IN THE FUTURE, WITH US. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
You understand that the Platform Services are evolving.You acknowledge and agree that Cape may update the Platform Services with or without notifying you. Cape will maintain compatibility between the Platform Service and the most current versions of Cape mobile applications.
Customer may access and use the Platform Services solely for its own benefit and in accordance with these TOU.
If you receive The Platform Services are provided on an subscription basis for a set term designated on your order, online registration or written contract ("Subscription Term"). The term will automatically renew for twelve-month periods at the expiration of the then-current term. You are authorized only to use the Platform Services during the Subscription Term and subject to payment of the applicable fees.
If you receive free access or a trial or evaluation subscription to the Platform Service (a "Trial Subscription"), then Customer may use the Platform Services in accordance with these TOU for a period of fourteen (14) days or such other period granted by Cape (the "Trial Period"). Trial Subscriptions are permitted solely for Customer's use to determine whether to purchase a paid subscription. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period. Cape has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CAPE WILL HAVE NO WARRANTY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
In order to use the Platform Services you will be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account with Cape. In registering for the Platform Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Cape has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Cape has the right to suspend or terminate your Account and refuse any and all current or future use of the Platform Services.
You are responsible for ensuring that your use of the Platform Services is in compliance with all applicable laws. You will ensure that any content you store through your use of the Platform Service will not violate any Cape policies or any applicable law. As a condition of use, you agree not to use the Cape Properties for any purpose that is prohibited by the Agreement or by applicable law or that would otherwise violate any applicable regulations or governmental orders. It is solely your responsibility to observe all applicable laws and regulations, obtain all appropriate and required authorizations, exemptions, and waivers, understand the risks of any flight operation, and ensure the safety of any flight using Cape Properties. While Cape Properties have been developed and designed to aid in compliance with flight regulations, it is solely your responsibility to comply with all applicable regulations and any laws. You will reasonably cooperate with us to identify the source of any problem with the Platform Services that we reasonably believe may be attributable to your content or any user materials that you control.You are solely responsible for the proper operation of the hardware devices used in connection with the Platform Services and with the development, maintenance, and use of your content. You specifically agree not to use the Platform Services to collect, store, process or transmit any sensitive personal information.
Notwithstanding anything to the contrary herein, Customer agrees that Cape may obtain and aggregate technical and other data about Customer's use of the Platform Services that is non-personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and may use the Aggregated Anonymous Data to analyze, improve, support and operate the Platform Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer, and other Cape customers and governmental and regulatory agencies. For clarity, this does not give Cape the right to identify Customer as the source of any Aggregated Anonymous Data.
You will ensure that you and all your authorized users comply with these TOU and in particular with the following acceptable use policies. Your rights to use the Platform Services are expressly conditioned on compliance with these requirements. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement. You shall not (and shall not permit any third-party) to: (a) take any action is unlawful; (b) interfere with or attempt to interfere with the proper functioning of the Platform Services or use the Platform Services in any way not expressly permitted by the Agreement (c) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Platform Services or any portion of the Platform Services; (d) frame or utilize framing techniques to enclose any trademark, logo, or other Platform Services (including images, text, page layout or form) of Cape; (e) use any metatags or other “hidden text” using Cape’s name or trademarks; (f) attempt to access code or modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Platform Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (g) attempt or engage in, any potentially harmful acts that are directed against the Platform Services, such as damaging or attempting to damage any hardware, violating or attempting to violate any security features of the Platform Services (h) use any devices or other processes to access the data or content of any other customer of Cape; (i) access the Platform Services in order to build a similar or competitive website, application or service; (j) copy, distribute, republish, or transmit the Platform Services or any part in any form or by any means; and (k) remove or destroy any copyright notices or other proprietary markings contained on or in the Platform Services.
You are responsible for all users’ use of your content and the Platform Service under your Account. You will ensure that all such users comply with your obligations under this Agreement and that the terms of any agreement you have with each such user are consistent with these TOU. If you become aware of any violation of your obligations caused by one of your users, you will immediately suspend access by such user and report such violation to Cape.
Other than the registered account holder, Cape does not provide any support or services to your users unless we have a separate agreement with you or an end user obligating us to provide such support or services.
Cape Platform Services are deployed on systems operated by third party cloud service providers (such as AWS and Google and other reputable providers). Use of the Platform Services is subject to the terms and policies of such third party providers in addition to these TOU. Such providers may have the ability to monitor your use of the Platform Services, if required by law may have access to your Content, and may have the right to disable or terminate your use if you are in violation of these TOU or applicable law. Cape will have no liability to you in such events. Cape may also use third party payment processing services and by using their payment methods you are forming a separate agreement directly with such third party and you agree to be bound by their terms. You authorize Cape to provide necessary information to such providers as is required to process payment.
Cape and its suppliers own all right, title and interest in the Platform Services. The Platform Services are protected by intellectual property laws throughout the world. Cape, its suppliers and service providers reserve all rights not expressly granted to you in this Agreement. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Platform Services. Cape’s name, stylized “C” and other related graphics, logos, service marks and trade names used on or in connection with the Platform Services are the trademarks of Cape and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Platform Services are the property of their respective owners.
You agree any ideas, suggestions, feedback or proposals you submit to Cape (“Feedback”) are provided at your own risk and that Cape has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Cape a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Platform Services.
You agree to indemnify and hold Cape, its parents, subsidiaries, affiliates, and its and their respective officers, directors, employees, and agents (collectively the “Cape Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your breach of the Agreement; (b) your use of the Platform Service; (c) in connection with your Account or any other person’s use or access to your Account, with or without your permission or (d) failure to pay any applicable taxes. This provision does not require you to indemnify any Cape Party to the extent the harm was caused by such party’s gross negligence, fraud, or wilful misconduct in connection with the Platform Service. You agree that the provisions in this section will survive any termination of your Account, the Agreement, or your access to the Platform Services.
Your subscription to the Platform Service includes basic maintenance and support services in accordance with Cape’s standard policies. Cape does not make warranties regarding the performance of the Platform Service. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE PLATFORM SERVICES IS AT YOUR SOLE RISK, AND THE PLATFORM SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. CAPE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE PLATFORM SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE PLATFORM SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
If Cape becomes aware of any possible violations by you of the Agreement, Cape reserves the right to investigate such violations. If, as a result of the investigation, Cape believes that unlawful activity has occurred, Cape reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Cape is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Platform Services to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Agreement; (3) respond to your requests for customer service; (4) protect the rights, property or personal safety of Cape, its users or the public, or (5) in connection with all enforcement actions or to government officials, as Cape in its sole discretion believes to be necessary or appropriate.
Platform Services are not available in every country. The Platform Services are controlled and offered by Cape from its facilities in the United States of America. Cape makes no representations that the Platform Services are appropriate or available for use in other locations. Those who access or use the Platform Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
Please read the following arbitration agreement in this Section carefully. It requires you to arbitrate disputes with Cape and limits the manner in which you can seek relief from us.
IF YOU AGREE TO ARBITRATION WITH CAPE, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST CAPE ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST CAPE IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at https://www.jamsadr.com/rules- streamlined-arbitration/ all other claims shall be subject to JAMS’ most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsdr.com/rules- comprehensive-arbitration/. JAMS’ rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties shall agree to select an alternative arbitral forum.
You may choose to have the arbitration conducted by telephone, based on written submissions or in person in the county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.