TERMS OF SERVICE

These Captched Terms and Conditions (“Agreement”) are entered into as of the date of registration for and/or first use of the Captched Products (“Effective Date”), by and between Captched, Inc. (“Captched”) and the customer listed in said registration information (“Customer”). By registering for or using the Captched Products, Customer acknowledges that it is agreeing to the terms of this Agreement. If Customer disagrees with the terms of this Agreement, Captched does not grant and/or Captched may immediately terminate Customer’s right to access or use the Captched Products.

THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER. PLEASE READ THEM CAREFULLY, SINCE THEY AFFECT YOUR LEGAL RIGHTS.

WHEREAS, Customer desires to enter into this Agreement to access and use the Captched Application Programming Interface (“API”), user interface, platform, website, plugins, software and related documentation and materials provided by Captched to Customer (collectively, “Captched Products”);

WHEREAS, Captched desires to grant Customer the right to access and use the Captched Products in strict accordance with this Agreement;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

  1. CAPTCHED TECHNOLOGY

    1. Agreements. Captched reserves the right, in its sole discretion, to modify or replace this Agreement at any time. Customer agrees that it is Customer’s responsibility to check this Agreement periodically for changes and that its use of the Captched Products following the posting of any changes to this Agreement constitutes acceptance of those changes. In addition to this Agreement, Customer’s access to and/or use of the Captched Products is governed by the Captched Privacy Policy, located at https://Captched.com/privacy-policy and Captched’s DMCA Copyright Policy, located at https://Captched.com/dmca. Further, certain Captched Products may be subject to additional terms and conditions specified by Captched from time to time, and Customer’s use of such Captched Products is subject to those additional terms and conditions.
    2. Scope & Current Offerings. As of the Effective Date, Captched offers certain Captched Products to Customer. Captched may add, remove, suspend, discontinue, modify or update the Captched Products at any time, in its discretion. All updates provided to Captched’s other customers generally and without additional fees shall also be made available to Customer. After the effective date of such update, Captched shall bear no obligation to run, provide or support legacy versions of the Captched Products.
    3. Support, Uptime & Training. Captched shall not be obligated to provide any training or customer support for the Captched Products and makes no representations with respect to any service levels or uptime requirements for the Captched Products.
  2. GRANT OF RIGHTS, METRICS, IMPLEMENTATION & ACCESS

    1. Rights to Captched Products. Subject to the terms and conditions of this Agreement, Captched grants Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferable right to use the Captched Products solely to shorten uniform resource locators (“URL”), receive Captched Metrics and utilize the other products and services contemplated herein during the Term. The grant of rights contemplated in this Section 2(A) shall be for Customer’s internal, non-commercial business purposes, and Customer acknowledges that any enterprise or commercial use of the Captched Products will require the execution of additional terms and conditions, and agrees to contact Captched at [email protected] regarding any use therefor.
    2. Metrics. As part of the provision of Captched Products, Captched collects and generates certain metrics and analytical data regarding the use of the Captched Products, which includes Customer URLs and other web pages and web-based data and information that Captched aggregates and uses in anonymized form (“Captched Metrics”). Captched Metrics are made available as part of the Captched Service and certain Captched Metrics are published on Captched’s website. Captched Metrics include without limitation a history of all URLs shortened by a particular account, a history of all clicks on a shortened URL, a history of all sharing of a shortened URL through third-party services such as Facebook and Twitter, a history of referral URLs for clicks of a shortened URL, a history of IP addresses used to access a shortened URL, the date and time such URLs were shortened, and visual presentation of any or all of the above. Customer acknowledges and agrees that all Captched Metrics are owned by Captched, and that Captched has the right to use, license, sell or otherwise dispose of Captched Metrics as detailed in Captched’s Privacy Policy, located at https://Captched.com/privacy-policy Customer may access, use, and copy the Captched Metrics made available to Customer as part of the Captched Products for Customer’s internal, non-commercial business purposes. Customer may not combine any Captched Metrics with any personally identifiable information and may not sublicense, sell, syndicate or otherwise share Captched Metrics with any third party.
    3. Implementation and Access. Captched shall provide Customer with non-transferable access credentials for the Captched Products. Customer shall not (i) misrepresent or mask identities when using the Captched Products or seeking access credentials; (ii) select or use as a username a name subject to any rights of a person or entity other than Customer without appropriate authorization; (iii) select or use, as Customer’s username, a name that is otherwise offensive, vulgar or obscene; or (iv) exceed any access permitted by Captched. Customer shall safeguard all access credentials provided by Captched and shall ensure the confidentiality and security thereof. To the extent Customer is a corporate entity rather than an individual (1) only employees and contractors of Customer (“Personnel”) may use the Captched Products; (2) Customer shall require its Personnel to comply with all Laws and the use restrictions (including user seat restrictions, if applicable) set out in the Agreement or otherwise prescribed by Captched; (3) Customer represents and warrants that its Personnel have the capacity and authority to enter into this Agreement; and (4) Customer acknowledges that it shall be fully responsible for any acts or omissions of its Personnel, whether authorized or unauthorized. Captched may update, refresh or change the manner of accessing the Captched Products in its discretion.
  3. INTELLECTUAL PROPERTY & GRANT RESTRICTIONS

    1. Ownership. Except for any Customer Content or Customer Services, Customer acknowledges and agrees that Captched is the sole and exclusive owner of all right, title and interest in and to the Captched Products and Captched Metrics and all related documentation, source code, tools, scripts, processes, techniques, methodologies, inventions, know-how, concepts, formatting, arrangements, visual attributes, ideas, database rights, copyrights, patents, trade secrets, and other intellectual property, and all derivatives, enhancements, modifications and improvements thereof (“Captched Materials”). Nothing in this Agreement or any other document shall be deemed to transfer ownership of the Captched Materials. Except for the limited license rights expressly granted herein, no rights to Captched Materials are granted hereunder and all rights in such Captched Materials are reserved.
    2. Feedback.  Customer is not required to provide any suggestions, enhancement requests, recommendations or other feedback regarding the Captched Products or Captched Metrics ("Feedback”). However, if Customer does so, all right, title and interest in and to such Feedback shall be assigned to, and shall become the sole and exclusive property of, Captched upon its creation.
    3. Legal Restrictions.  Customer and its Personnel shall not, and shall not permit any third party to: (i) create any service, software, documentation or data that is competitive with, substantially similar or confusingly similar to any aspect of the Captched Products or Captched Metrics; (ii) use, modify, display, perform, copy, disclose or create derivative works of the Captched Products except as expressly permitted herein; (iii) reverse engineer, decompile, disassemble, mimic, screen-scrape, frame or mirror the Captched Products or Captched Metrics, or use any other means to attempt to discover their source code except as expressly permitted herein; (iv) benchmark, encumber, distribute, sublicense, assign, share, sell, rent, lease, pledge or otherwise transfer the Captched Products or Captched Metrics to any third party; (v) transmit harmful, disabling or malicious code or devices, or infringing, defamatory, unlawful, tortious, deceptive, misleading, fraudulent, abusive, indecent or otherwise offensive content, or content that contains someone’s personal information or violates a third party’s intellectual property, privacy or publicity rights (“Prohibited Content”) through the Captched Products; (vi) access via automated or unauthorized means, interfere with, disrupt or attempt to monitor, override access or circumvent security measures for, the Captched Products or Captched Metrics or related systems, including via robots, spiders and other electronic methods; and (vii) obscure, remove or alter any proprietary rights or other notices on the Captched Products or Captched Metrics. Notwithstanding anything to the contrary herein, Captched may, in its sole discretion, immediately revoke the grant of rights contemplated in Section 2(A) if Customer breaches or threatens to breach the restrictions in this Section or creates other security or legal concerns. Customer hereby agrees that Captched will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of Customer’s obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.
    4. Technical Restrictions.   Captched reserves the right to limit the number and/or frequency of API calls, concurrent URL shortens or other access to or use of Captched Products in its sole discretion. Customer shall not exceed any such limitations in the relevant documentation or as otherwise provided by Captched. If Captched believes that Customer has attempted to exceed or circumvent these limitations, Captched may suspend or block Customer’s access to the Captched Products. Captched may monitor Customer’s use of the Captched Products, including to ensure Customer’s compliance with this Agreement.
    5. Open Source Software.   Captched Products may incorporate software that is subject to terms that, as a condition of use, copying, modification or redistribution, require such software and derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge (“Open Source Software”). To the extent any Open Source Software license terms are inconsistent with this Agreement, then such rights in the applicable Open Source Software license shall take precedence over the rights granted in this Agreement, but solely with respect to such Open Source Software. Any applicable Open Source Software license is solely between Customer and the applicable licensor of the Open Source Software and Customer shall comply with the applicable Open Source Software license.
    6. Third Party Materials.   Captched Products may link to or make available third party products, services, websites, social media platforms, data, software or source code, including without limitation Open Source Software (“Third Party Materials”). Captched has no control over Third Party Materials. Accordingly, Captched is not responsible or liable for any Third Party Materials. While Captched has no obligation to monitor Third Party Materials, Captched may remove or modify such Third Party Materials in its discretion, including without limitation to comply with Law. Customer agrees to comply with all terms and conditions and privacy policies related to any Third Party Materials.
  4. CUSTOMER SERVICES, INFORMATION & URLS

    1. Customer Services.   Captched shall have no liability for any Customer product or service accessed through or making use of the Captched Products or any end user, customer or Personnel’s use thereof (“Customer Service”). Customer shall not use the Captched Products in any manner implying any partnership with, sponsorship by, or endorsement by Captched. Customer shall not suggest or imply that Captched is the author of or otherwise responsible for the views or content of the Customer Service. Neither Customer nor the Customer Services shall disparage Captched or the Captched Products. The Captched Products shall not be used in connection with any Prohibited Content, or any activities where the use or failure of the Captched Products could lead to death, personal injury or property or environmental damage or adversely impact or impose liability on Captched in any manner.
    2. Customer URLs.   Customer hereby grants to Captched an irrevocable, perpetual, non-exclusive, sublicensable, transferable, royalty-free, worldwide license, to use, copy, import, display, reproduce, perform, distribute, create derivative works, alter or modify all URLs provided by Customer to Captched (“Customer URLs”) in connection with the provision, operation and promotion of the Captched Products, creation of Captched Metrics and for other business purposes. Subject to Section 5(C), Customer expressly agrees that it shall not input any Customer content into the Captched Products except Customer URLs. Customer retains all right, title and interest in and to the Customer URLs and is responsible for obtaining, maintaining, retaining and securing the Customer URLs. Customer further acknowledges that all shortened URLs based on Customer URLs will not be broken, taken down, or otherwise disabled even after termination or expiration of this Agreement.
    3. Customer Information.   As part of the provision of Captched Products, Captched may receive from Customer or third parties (including social media networks) or collect from Customer certain information, including without limitation device and browser information, email addresses, company size, industry, job title, and team type, and share such information with its partners, vendors and service providers including without limitation in order to provide research, analytics, support, security, fraud prevention, spam prevention, advertising, or email marketing, to complete transactions or to ensure compliance with this Agreement (“Customer Information”). In the event Customer Information derives from an email address or other identifier which indicates a connection to an existing enterprise customer, such Customer Information may also be shared with the enterprise customer and combined with data received or collected in connection with said enterprise customer. Customer consents to such collection, use, processing and sharing of Customer Information, which shall be in accordance with Captched’s Privacy Policy, located at https://captched.com/privacy-policy.
  5. REPRESENTATIONS AND WARRANTIES

    1. Customer Content Warranties.   Customer represents and warrants that (i) the Customer URLs and Customer Information (collectively, “Customer Content”) and all information on which the Captched Metrics are based, and the receipt, collection, use and provision thereof, shall not infringe or violate any third party rights, including without limitation any intellectual property, privacy and publicity rights; (ii) the Customer Content, and any information on which the Captched Metrics are based, was received, collected, used and provided to Captched in compliance with all applicable laws, rules and regulations and self-regulatory guidelines and requirements, including without limitation laws on privacy and data security, unsolicited messaging, unfair or deceptive practices, or United States trade or export restrictions (“Laws”); (iii) it has obtained all necessary consents, approvals or other authorizations or permissions for, and has complied with its posted privacy policies and all third-party terms and conditions or privacy policies in connection with, its receipt, use and/or provision of the Customer Content and all information on which the Captched Metrics are based; and (v) that none of the Customer Content or information or data on which the Captched Metrics are based contains any personally identifiable information or persistent identifiers from individuals under the age of 13.
    2. Further Customer Warranties.   Customer further represents and warrants that (i) it has implemented or contractually required industry-standard security measures to help protect the security and integrity of, and prevent, unauthorized access to the Captched Products or Captched Metrics, Customer Content and Customer Services; (ii) it will not do anything that will make the Captched Products subject to any open source or similar license which creates an obligation to grant any rights in the Captched Products; (iii) it will not disrupt, disable, erase, alter, harm, damage, interfere with or otherwise impair in any manner the Captched Products or Captched Metrics; (iv) in the event of any security breach or unauthorized access to any Captched Products, Captched Metrics, Customer Content and Customer Services, Customer will immediately investigate such breach and notify Captched in writing, and, unless otherwise notified by Captched, take all corrective action necessary to remedy such breach and/or comply with applicable Law and the requirements of Captched, all at Customer’s cost; and (v) Customer, Customer’s use of the Captched Products, the Customer Content and Customer Services will comply with all Laws and not violate or infringe upon any third party intellectual property, privacy or publicity rights.
    3. CAPTCHED DISCLAIMERS.   CAPTCHED PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. CAPTCHED DOES NOT WARRANT THAT: (I) THE CAPTCHED PRODUCTS WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) SHORTENED URLS, THE CAPTCHED PRODUCTS AND CAPTCHED METRICS WILL BE ACCURATE, ERROR-FREE OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) THE CAPTCHED PRODUCTS ARE SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (IV) THE RESULTS OF USING THE CAPTCHED PRODUCTS OR CAPTCHED METRICS WILL MEET CUSTOMER’S REQUIREMENTS OR ANY OF ITS OR ITS USERS’, PERSONNEL’S OR CUSTOMERS’ BUSINESS NEEDS; OR (V) THE CAPTCHED PRODUCTS WILL BE UNINTERRUPTED OR THAT ANY INTERRUPTION WILL BE CORRECTED IN A TIMELY MANNER. CUSTOMER’S USE OF THE CAPTCHED PRODUCTS AND CAPTCHED METRICS IS SOLELY AT ITS OWN RISK. FURTHER, CAPTCHED MAKES NO REPRESENTATIONS OR WARRANTIES AND SHALL ASSUME NO LIABILITY AMOUNTS OR INDEMNITY OBLIGATIONS WITH RESPECT TO ENSURING THAT CUSTOMER’S USE OF THE CAPTCHED PRODUCTS AND CAPTCHED METRICS COMPLY WITH ANY LAWS OR REGULATIONS OUTSIDE THE UNITED STATES AND CUSTOMER SHALL BE SOLELY LIABLE FOR SUCH COMPLIANCE. CAPTCHED SHALL BEAR NO RESPONSIBILITY FOR THIRD PARTY PRODUCTS OR SERVICES (E.G., OPEN SOURCE SOFTWARE, SOCIAL MEDIA PLATFORMS, THIRD PARTY MATERIALS OR FOR HOST OR APP STORE PROVIDERS). CUSTOMER RECOGNIZES THAT THE FIGURES CONTAINED IN THE CAPTCHED METRICS PRODUCED HEREUNDER ARE ESTIMATES AND MAY BE SUBJECT TO STATISTICAL ERROR. CAPTCHED DOES NOT WARRANT THAT THE CAPTCHED METRICS WILL BE COMPLETELY CORRECT, ACCURATE, TIMELY OR OTHERWISE RELIABLE. CAPTCHED HEREBY DISCLAIMS ANY LIABILITY FOR ANY USE OR RELIANCE ON THE CAPTCHED METRICS BY CUSTOMER AND THIRD PARTIES.
  6. CONFIDENTIALITY

    1. Confidentiality.   Customer agrees that the business, technical and financial information of Captched that is designated in writing as confidential, or that should reasonably be considered confidential given the nature of the information and/or the manner or means of disclosure, shall be the confidential property of Captched (“Confidential Information”). Captched’s Confidential Information includes the Captched Materials. Confidential Information shall only be used by Customer as explicitly authorized in writing by Captched. Customer shall use all necessary measures to safeguard Captched’s Confidential Information. Confidential Information does not include information that Customer can show by pre-existing written evidence (i) was previously rightfully known to the receiving party without restriction on disclosure; (ii) is or becomes known to the general public, through no fault or breach on the part of the receiving party; (iii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation; or (iv) is required to be disclosed pursuant to a judicial order or third party subpoena, provided Customer provides written notice to Captched in order for Captched to seek an appropriate remedy and only discloses the minimum information required by the order or subpoena. Customer hereby agrees that Captched will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of the receiving party’s obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.
  7. INDEMNIFICATION AND RESPONSIBILITY

    1. Indemnification.   Customer will defend, indemnify and hold harmless Captched, its parents, subsidiaries, affiliates and their employees, officers, directors, representatives, contractors, customers, business partners, successors and assigns (“Captched Indemnitees”) from and against any third party claims and actions, and resulting damages, liabilities and costs (including reasonable attorneys’ fees and expenses) incurred by Captched Indemnitees arising out of or directly or indirectly related to (a) the Customer Content, Customer Services or any other Customer products and services; (b) Customer’s acts and omissions hereunder, breach of this Agreement, or violation of Laws; and/or (c) any allegation of intellectual property, privacy or publicity infringement concerning Customer Content or Customer Services. Captched shall promptly notify Customer of any claim for which it seeks indemnification; provided, however, that any delay in providing notification shall not vitiate Customer’s indemnification obligations unless Customer is materially prejudiced thereby. Customer shall have sole control over the defense of any claim under this Section, except that Captched may approve any counsel used by Customer and that Captched may participate in the defense, at Customer’s cost. All settlements of indemnification claims require the consent of Captched.
  8. LIMITATION OF LIABILITY

    1. LIABILITY LIMITATION.   IN NO EVENT SHALL Captched BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE Captched PRODUCTS, Captched METRICS OR OTHERWISE HEREUNDER FOR ANY CLAIM RELATED TO (I) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); (III) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE Captched PRODUCTS; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CUSTOMER CONTENT AND OTHER DATA MAINTAINED OR TRANSMITTED BY OR THROUGH CUSTOMER’S USE OF THE Captched PRODUCTS; (V) CUSTOMER’S FAILURE TO PROVIDE Captched WITH ACCURATE ACCOUNT OR OTHER INFORMATION; (VI) ANY LIABILITY RESULTING FROM CUSTOMER’S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; (VII) CUSTOMER’S FAILURE TO ACCESS THE Captched PRODUCTS DUE TO MALFUNCTION(S) IN EQUIPMENT, INFRASTRUCTURE, SYSTEM, OR THE NETWORK USED BY CUSTOMER; OR (VIII) AMOUNTS FOR ALL CLAIMS HEREUNDER IN THE AGGREGATE IN EXCESS OF $100.00.
  9. TERM AND TERMINATION

    1. Agreement Term. This Agreement shall commence on the Effective Date and continue unless otherwise terminated as permitted herein (“Term”).
    2. Captched Right to Terminate.   Captched may terminate this Agreement immediately in its discretion. Upon expiration or termination of this Agreement, all applicable rights and access granted to Customer shall automatically terminate and Customer and its Personnel shall cease any further use of the Captched Products and return, or, if directed by Captched, destroy, all Confidential Information of Captched. Any Section of this Agreement which by its nature would survive such expiration or termination shall so survive.
  10. GOVERNING LAW & CLASS ACTION WAIVER

    1. Governing Law.   This Agreement and the transactions contemplated hereby shall be governed by and construed under the law of the State of New York without regard to conflicts of law provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods.
    2. Arbitration.   While Captched will make reasonable efforts to resolve any disagreements Customer may have with Captched, if these efforts fail Customer agrees that all claims, disputes or controversies against Captched arising out of this Agreement ("Claims") are subject to fixed and binding arbitration, no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; and Claims made independently or with other claims. The party filing arbitration must submit Claims to the American Arbitration Association and follow its rules and procedures for initiating and pursuing an arbitration. Any arbitration hearing that Customer attends will be held at a place chosen by the American Arbitration Association in the same city as the U.S. District Court closest to Customer’s then current residential address, or at some other place to which the parties agree in writing, and the arbitrator shall apply New York law consistent with the Federal Arbitration Act. Customer shall not be entitled to join or consolidate Claims in arbitration by or against other users or customers or to arbitrate any Claim as a representative or member of a class or in a private attorney general capacity. Customer may obtain copies of the current rules, and forms and instructions for initiating arbitration by contacting the American Arbitration Association using the contact information noted below.

      American Arbitration Association
      800-778-7879
      (toll-free) Website: www.adr.org

      A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten (10) years’ experience or a retired or former judge, selected in accordance with the rules of the American Arbitration Association. The arbitration will follow the procedures and rules of the American Arbitration Association which are in effect on the date the arbitration is filed unless those procedures and rules are inconsistent with this Agreement, in which case this Agreement will prevail. Those procedures and rules may limit the discovery available to the parties. The arbitrator will take reasonable steps to protect customer account information and other confidential information if requested to do so by the parties. Each party to the arbitration will bear the expense of that party's attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines. The arbitrator's award is final and binding on the parties unless either party appeals it in writing within fifteen (15) days of notice of the award. The appeal must request a new arbitration before a panel of three neutral arbitrators designated by the American Arbitration Association. An award by a panel is final and binding on the parties after fifteen (15) days has passed.

      In the event this arbitration clause is not enforceable by the specified arbitration organization, the parties will mutually agree upon another arbitration organization that will enforce this clause.

    3. Limitation for Bringing Claims.   Customer agrees that regardless of any statute or law to the contrary, any Customer claim or cause of action arising out of, related to or connected with the use of the Captched Products, Captched Metrics or this Agreement must be filed within one (1) year after such claim of action arose or be forever banned.
  11. MISCELLANEOUS

    1. Relationship of the Parties.   The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
    2. Entire Agreement and Severability.   This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between the parties with respect thereto. No additional or conflicting terms set out on Customer order, invoice, statement or other document, or contained in any “shrinkwrap” or “clickwrap” agreements, are binding. If any provision of this Agreement are found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
    3. Force Majeure.   Captched shall not be liable for any delay in performing or failure to perform Captched’s obligations hereunder where such delay or failure results from any cause beyond Captched’s reasonable control, including, without limitation, cyber-attacks, mechanical, electronic or communications failures, acts of God, terrorism, war, natural disasters, failure of any telecommunications or transportation or of any third party provider or supplier (e.g., host or app store providers) or labor disputes.
    4. Assignment.   This Agreement is personal to Customer, and is not assignable, transferable or sublicensable by Customer except with Captched’s prior written consent. Any attempt to do so without Captched’s prior written consent is void. Captched may assign, transfer, sublicense or delegate any of Captched’s rights and obligations hereunder without consent.
    5. Notices.   Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when sent, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
    6. Headings; Interpretation.   The section and paragraph headings in this Agreement are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in this Agreement shall be read as being followed by “without limitation.”
    7. Export.   The parties shall comply with all applicable export and import control laws and regulations, and, in particular, shall not export or re-export the Captched Products without all required United States and foreign government licenses.
    8. Government Use.   The Captched Products are "commercial items" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Any access to or use of the Captched Products by any government entity is prohibited, except as expressly permitted by the terms of this Agreement. Additionally, any use by U.S. government entities must be in accordance with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4. If Customer uses the Captched Products in its official capacity as an employee or representative of a U.S., state or local government entity and is legally unable to accept the indemnity, jurisdiction, venue or other clauses herein, then those clauses do not apply to such entity, but only to the extent as required by applicable law.
    9. Publicity.   Customer may not use Captched’s logos or trademarks in any manner without Captched’s prior written permission, which may be withheld in its sole discretion. Customer grants Captched the right to use Customer’s logos or trademarks in any case studies or marketing or publicity materials and on its website to identify Customer as a customer that uses the Captched Services.


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