CAPE PLATFORM SERVICES

TERMS OF USE

Version 3.0

Last Updated Date: February 4, 2019

This Terms of Use Agreement (“Terms of Use” or “TOU” or this “Agreement”) sets forth the terms and conditions pursuant to which Cape Productions, Inc. (“Cape”) provides access to use of the Cape cloud platform service that enables remote operation of drones and storage of the data captured (the “Platform Services”).

  1. Binding Agreement

This agreement constitutes a legal agreement between Cape and the entity or person placing an order for or accessing the Platform Services ("Customer" or "you"). BY REGISTERING TO USE THE SERVICES OR ACCESSING OR USING THE PLATFORM SERVICES IN ANY WAY, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH CAPE, (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE, AND (4) YOU ARE NOT A PERSON BARRED FROM USING THE PLATFORM SERVICES UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICES.

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”).

  1. Arbitration And Waiver Of Certain Rights

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.

  1. Changes to Terms

THESE TERMS OF USE ARE SUBJECT TO CHANGE BY CAPE IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Cape will publish the revised Terms of Use and indicate the effective date. If  you are an existing user and we make any material changes, we will also send an e- mail to you at the last e-mail address you provided to us. Any changes to the Agreement will be effective immediately for new users and will be effective thirty (30) days after posting or email notification for existing users. Cape may require you to provide consent to the updated TOU and if you do not agree to any change(s) after receiving notice) you must stop using the Platform Services. Otherwise, your continued use of the Platform Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE MOST CURRENT TERMS.

  1. Changes to Services

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.

  1. Subscription to Platform Services 

Customer may access and use the Platform Services solely for its own benefit and in accordance with these TOU.

  1. Standard Term

        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.

  1. Trial Subscriptions

        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.

  1. Registering your Account 

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.

  1. Accessing the Platform Services
  1. Account Authorization  Cape will establish the Customer account (“Account”) and Customer will have access to an administrative portal through which Customer may administer the Platform Services within its organization including establishing users authorized to access its Account.   Access information for your Account is for your internal use only and you will not sell, transfer or sublicense the access information to any other entity or person, except that you may enable access by your agents and subcontractors performing work on your behalf. Customer is responsible for the security of its passwords, and for all use of its Account and for all activities that occur under its Account.  Cape and our affiliates and suppliers are not responsible for unauthorized access to your Account.You agree that you shall monitor your Account to restrict use by unauthorized persons, and you will accept full responsibility for any unauthorized use of the Platform Services. You agree to notify Cape immediately of any unauthorized use of your password or any other breach of security.
  2. Necessary Equipment and Software  The Platform Service is a cloud service provided over the internet. You must provide all equipment and software necessary to connect to the Platform Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Platform Services and transferring data.
  3. Security, Availability and Backup   Cape will implement reasonable and appropriate measures designed to help you secure your content and data against accidental or unlawful loss, access or disclosure. Cape procures cloud hosting services from reputable third party vendors (such as AWS and Google) and has no control over the methods they use for security and integrity of data on their servers. Cape will use reasonable efforts to coordinate platform maintenance activities with such providers but is not responsible for service interruptions caused due to such third party providers. You are responsible for properly configuring and using the Platform Service and otherwise taking appropriate action to secure, protect and backup your accounts and your content in a manner that will provide appropriate security and protection, which might include use of encryption to protect content and routinely archiving your content and data. Cape does not provide an archiving service and only agrees that it will not intentionally delete any your content or data prior to termination of your applicable Subscription Term. Cape expressly disclaims all other obligations with respect to storage.

  1. Your Use and Content

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.

  1. Aggregated Anonymous Data 

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.

  1. Acceptable Use Policies

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.  

  1. Your Users

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.

  1. Third Party Providers

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.

  1. Proprietary Rights

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.

  1. Feedback

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.

  1. Fees and Payment Terms
  1. Payment  You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You must provide Cape with valid credit card or other acceptable form of payment. You agree to immediately notify Cape and our payment processor of any change in your billing address or the credit card used for payment hereunder.  Late payments may be subject to late fees up to the maximum amount permitted by law. Cape reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Platform Services or by e-mail delivery to you.
  2. Taxes Cape’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Cape, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority and you will indemnify Cape for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Cape is permitted to pass to its customers that is) the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
  3. Free Trials and Other Promotions   Any free trial or other promotion must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable fee.
  4. Payment Disputes You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: 822 Cassia St, Redwood City, CA 94063.

  1. Indemnification

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.

  1. Disclaimer of Warranties 

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.

  1. Limitation of Liability.
  1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE CAPE PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES RESULTING FROM LOSS OF USE, ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM SERVICES, WHETHER OR NOT CAPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A CAPE PARTY FOR DEATH OR PERSONAL INJURY CAUSED BY A CAPE PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT.
  2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL CAPE PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY CAPE AS PAYMENT FOR YOUR USE OF THE PLATFORM SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CAPE AND YOU AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

  1. Term and Termination
  1. Term. Your use of the Platform Service is subject to these terms at all times.
  2. Termination of Services by Cape. Cape has the right to suspend or terminate your use of the Services any Services at any time you are in violation of these terms or if necessary to avoid a violation of applicable law or damage to Cape’s business or reputation. Cape will use reasonable efforts under the circumstances to notify you of its determination.  Termination does not waive any other rights or remedies Cape may have. Cape shall not be liable to you or any third-party for any termination of your Account.
  3. Termination of Services by You. If you want to terminate the Agreement, you may do so at any time by (a) notifying Cape and (b) closing your Account. Your notice should be sent, in writing, to the following Cape address: 822 Cassia St, Redwood City, CA 94063.
  4. Effect of termination. Termination by you for convenience during a subscription term does not entitle you to a refund of fees. Upon termination of the Platform Service you will be prevented from further access and use, your password and all related information and files associated with or inside your Account will be deleted. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

  1. Remedies for Violations 

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.

  1. International Users

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.

  1. Arbitration Agreements 

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.

  1. Applicability of Arbitration Agreement. You agree that any claim or dispute relating in any way to your access or use of the Company Properties, including any Products sold through the Website, or to any aspect of your relationship with Cape, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims in small claims court if you claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (b) your or Cape may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).

        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.

  1. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Matthew Bartus, at 3175 Hanover Street, Palo Alto, CA 94304. The arbitration will be conducted by JAMS, Inc. f/k/a Judicial Arbitration and Mediation Services (“JAMS”), an established alternative dispute resolution provider (“ADR Provider”).

        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.

  1. Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Cape. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non- monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Cape.
  2. Waiver of Jury Trial. YOU AND CAPE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Cape are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13(4)(a) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
  3. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims shall be resolved in a court.
  4. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: 822 Cassia St., Redwood City, CA 94063, and support@capehq.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.

  1. General Provisions
  1. Governing Law and Venue. Any dispute or claim relating in any way to your use of the Platform Services will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both agree that such claims will be litigated exclusively in the state or federal courts located in San Mateo County, California.
  2. Electronic Communications. The communications between you and Cape use electronic means, whether through the Platform Services or via e-mail. For contractual purposes, you (1) consent to receive communications from Cape in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Cape provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
  3. Assignment. The Agreement, and your rights and obligations here under, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Cape’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
  4. Force Majeure. Cape shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
  5. Severability. If any part or parts of this Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.        
  6. Modification. Modifications to this Agreement must be in writing and signed by an authorized officer of CAPE. Notwithstanding any provision in this Agreement to the contrary, we agree that if Cape makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Cape.
  7. Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English. C’est law volone expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
  8. Notice. Where Cape requires that you provide an e-mail address, you are responsible for providing Cape with your most current e-mail address. In the event that the last e-mail address you provided to Cape is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Cape’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Cape at the following address: 822 Cassia St., Redwood City, CA 94063. Such notice shall be deemed given when received by Cape by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
  9. Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
  10. Severability. If any provision of the Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
  11. Export Control. You may not use, export, import, or transfer the Platform Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Platform Services, and any other applicable laws. In particular, but without limitation, the Platform Services may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Platform Services, you represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Platform Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Cape are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Cape products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
  12. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
  13. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.