ROAM TECHNOLOGIES INC.

D/B/A CAPITALIZE

CUSTOMER TERMS OF SERVICE AND SOFTWARE LICENSE AGREEMENT

CUSTOMER TERMS OF SERVICE

Last Modified:  April 24, 2024

These Customer Terms of Service (these “Customer Terms”) describe your rights and responsibilities when using the mobile and web-based platforms and software-based or other products and services (the “Services”) offered by ROAM Technologies, Inc., doing business as Capitalize (together with its affiliates, successors and assigns, “Capitalize”, “we”, “our”, or “us”). These Customer Terms, any other terms or conditions provided by us in connection with your Services (including, as applicable, the Auction Terms and Conditions), and any Order Form(s) (as defined below), together with any and all documents referenced herein or therein form the “Agreement” between you and us.

Please read these terms carefully to ensure you understand each provision. The Agreement requires us to resolve disputes through a mandatory arbitration provision on an individual basis rather than jury trials or class actions.

By accessing or using the Services you acknowledge your understanding of the then-current Agreement and agree to be bound by the terms and conditions of the Agreement.

1.                How Our Services Work

1.1             Generally

The Services are a set of tools to assist stakeholders in the commercial real estate industry, which may include commercial real estate brokers, buyers, sellers, lessors, lessees and lenders. Key aspects of our offering include an online marketplace, property listing pages, due diligence vaults, solicitation products and services, data insights and reports, and closing checklists, among others. Ultimately, however, all transactions are themselves governed by purchase and sale agreements or other transaction documents between buyers, sellers, lessors, lessees, brokers, and other involved parties (“Transaction Documents”).

1.2             Relationship between Users and Us

The Services simply offer tools to help you through the commercial real estate lending or finance, and other related transactional process. We are not a party to, nor are we responsible in any manner for, any such transaction, whether or not you use the Services. We are not (nor shall we be deemed to be) providing any licensed broker services or activities in connection with any such loan or transaction.  As such, we require that any borrower publicizing a loan or property via  the Services be represented by a licensed broker   unless the borrower  or is a licensed real estate broker or such license is unnecessary in accordance with applicable laws or regulations. Borrowers  may, in their sole discretion, offer commissions for loans  subject to the borrower’s terms and conditions.

We have no responsibility for any information provided by third parties, including but not limited to buyers, sellers, borrowers, brokers, lenders, and other involved parties. Without limiting the generality of the foregoing, each borrower  is solely responsible for conducting all necessary due diligence activities regarding any loan, which may include title and legal status, current and potential valuations, physical condition and aesthetic/tenant improvement attributes, environmental reports, encumbrances, rent roll and pending lease negotiations, tenant defaults or issues and any other pertinent information. Borrowers  are encouraged to consult with licensed professionals to review all relevant information, records, and reports. Borrowers  assume all risk and potential liability related to due diligence activities. We do not verify the completeness or accuracy of any information or materials provided by sellers, lessors, brokers, lenders, or other third parties involved.

Any disputes between users of the Services are solely between such users without our involvement. You acknowledge and agree that we have no obligation or responsibility in connection with any such disputes.

2.                General Provisions

2.1             Customers, Authorized Users, and Customer Content

“Customer” or “you” is you, the individual entering into the Agreement or the entity on whose behalf you are entering into the Agreement (together with and on behalf of any of your Authorized Users (as defined below)). If you would like to purchase a paid membership to the Services, please contact us at sales@capitalize.io. If you have purchased a paid membership and your Order Form (as defined below) permits you to authorize additional individuals to use the Services via your membership (each such individual, an “Authorized User”), then you may do so pursuant to the terms of the Order Form. Each Authorized User must agree to the Agreement when setting up an account and accessing or using the Services, and each Authorized User’s right to use the Services terminates automatically upon the termination of your paid membership.

Only you may use your account. You may submit content or information to the Services, which includes Personal Data (as defined below) and User Content (as defined below) (“Customer Content”).   

You are solely responsible for all of the acts and omissions of anyone using your account(s) in relation to the Services and the Agreement, including without limitation any Customer Content submitted through such account. You hereby represent and warrant that you have all rights necessary (including without limitation any necessary consents and authorizations from individual persons identified in the Customer Content and licenses from third parties whose content is included in the Customer Content) to use the Customer Content in connection with the Services and to provide to us the applicable licenses and rights hereunder. To the extent permitted under applicable law, we take no responsibility and assume no liability for any Customer Content that you or any third party submits, posts, or otherwise makes available through the Services. As between you and us, you shall be fully responsible for the Customer Content and the consequences of submitting, posting, or otherwise making it available via the Services, and you acknowledge and agree that we are acting only as a passive conduit for your online distribution of such Customer Content.

2.2             Memberships

A membership allows you to access the Services. Memberships may be free or paid depending on your relationship with us. Paid memberships allow you to access additional or different features and functionalities, while free memberships provide limited access to the Services. A membership may be procured through the Services interface, or in some cases, via an order form, in each case that contains additional terms entered into between you and us (each an “Order Form”). Paid memberships commence when we make them available to you. Paid memberships continue for the term specified in the Services or in the Order Form, as applicable (which term may be variable if the Order Form provides for one-time or other limited-time use), and free memberships continue until terminated (in each case, the “Membership Period”).

2.3            Payments

(a)                   Payment Terms 

If you have purchased a paid membership for the Services or have otherwise purchased access to certain paid features and functionalities of the Services, the applicable fees are specified in the Services interface or in an Order Form and must be paid in advance, unless otherwise agreed. Except as set forth in Section 4, payment obligations are non-cancelable and fees paid are non-refundable. For clarity, in the event you downgrade any memberships from a paid plan to a free plan, you will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the applicable Membership Period.  If we agree to invoice you by email or other means, full payment must be received within thirty (30) days from the invoice date (unless otherwise agreed). Fees stated are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases, except for those taxes based on our net income. Should any payments to us be subject to withholding tax by any government, you will reimburse us for such withholding tax.

(b)                 Billing Policies 

If you elect to purchase a paid membership to use our Services, or certain other paid aspects of the Services, you agree to the pricing communicated by us. We may add new services for additional fees and charges, or add or amend fees and charges for existing services, at any time in our sole discretion. For paid memberships, we shall provide you with at least 60 days’ prior written notice of any such changes to fees and charges, such changes to take effect at the beginning of your renewal term, if any

(c)                 Payment Information 

We may use a third-party payment processor (“Payment Processor”) to process payments you make in connection with the Services. Currently, our Payment Processor is Stripe, Inc. (https://stripe.com/), but we may change our Payment Processor at any time. The Payment Processor’s privacy statement will be available on its website for information on how the Payment Processor collects and uses personal information. Your payment must be received by the Payment Processor before our acceptance of an order, and must use one of the payment methods accepted by the Payment Processor. We do not view or store your full credit card or other payment method information. For all payments, we or Payment Processor will collect your payment method details and charge your chosen payment method in connection with an order. You acknowledge and agree that we are not responsible for any breaches of credit card or other payment method security or privacy. 

You represent and warrant that: (a) the account, order, and payment method information you supply to us or the Payment Processor, as applicable, is true, correct, and complete; (b) you are duly authorized to use such payment method; (c) you will pay any charges that you incur in connection with the Services, including any applicable taxes; (d) charges incurred by you will be honored by your payment method company; (e) you will pay all charges incurred by you at the posted prices, including all applicable taxes, if any; (f) you will not allow anyone else to use your membership; (g) you will not transfer your membership or password to anyone else; and (h) you will report to us any unauthorized or prohibited access or use of your membership or password.  

2.4             Beta Products

Occasionally, we may offer beta features and enable select beta testers to help us test these new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products are made available on an “as is,” and “as available” basis and, to the extent permitted under applicable law, without any warranties or contractual commitments we make for other Services.

2.5            Feedback

You may choose to, or we may invite you to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use, distribute, and make and incorporate into our Services and other products any Idea without any additional compensation or consideration, whether to you or anyone else, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of the submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our personnel, or obtained from sources other than you. For purposes of clarity, we have no obligation to implement or make any changes to the Services based on any Ideas you provide us.

2.6             Privacy Policy and Protection of Personal Information

Our Privacy Policy at https://www.capitalize.io/privacy provides notice regarding how we collect and use data relating to the use and performance of our websites and products, including personal information about our users.

Any personal information you submit to our Services (hereinafter, “Personal Data”) must be Personal Data that you have the right to provide.

During the Membership Period, you will be permitted to export or share certain personal data from the Services; provided, however, that you acknowledge and agree that the ability to export or share personal data may be limited or unavailable depending on the type of Services plan in effect and the data retention settings enabled.

3.                Services Usage and Restrictions

3.1             Intellectual Property

(a)              Ownership of the Services, Documentation, and Company Data

We exclusively own and will continue to own our Services and Documentation, including without limitation, the user interfaces, designs, data, information, software, products, graphics and all other elements of the Services, and all related intellectual property and other proprietary rights related thereto (“Our Materials”). Except as expressly allowed by the Agreement, you have no rights or licenses to, and may not access or use, any of Our Materials, and we reserve all rights not expressly granted in the Agreement. Further, all Company Data (as defined below) will be owned solely and exclusively by us and, for purposes of clarity, you agree that we may use the Company Data in perpetuity for any purpose permitted by applicable law, including without limitation, to operate, analyze, improve, and market the Services and our other products and services and share such data with our affiliates and business partners

We may, from time to time, make available or integrate certain third-party products and services, including but not limited to open source software (“Third-Party Products”) for use in connection with the Services. In addition, the Services may integrate with, or contain, third party materials or information, or links thereto, that are not owned or controlled by us (“Third-Party Materials”). We do not endorse or assume any responsibility for any Third-Party Products or Third-Party Materials. You acknowledge that such Third-Party Products or Third-Party Materials may be made available under, and in such case you shall be subject to any such, separate or additional terms and conditions and privacy policies, including but not limited to open source licenses. If you access any third party website, Third-Party Product, or Third-Party Materials you do so at your own risk, and you acknowledge and agree that the Agreement and our Privacy Policy do not apply to your use of such sites or services. You expressly relieve us from any and all liability arising from your use of any Third-Party Products or Third-Party Materials.

(b)              Access to the Services and Documentation

During the Membership Period, we grant you a limited, non-exclusive, revocable, non-sublicensable, non-transferable right to access and use the Services, subject to the terms and conditions set forth in the Agreement, solely for your own internal business purposes.

To the extent that we may make downloadable software components available, via app stores or other channels, as part of the Services, during the Membership Period, we grant to you a limited, non-exclusive, revocable, non-sublicensable, non-transferable right for you to use the object code version of these components, subject to the terms and conditions set forth in the Agreement, solely to the extent necessary to use the Services, including any minor updates, bug fixes, and the like to such downloadable software components that we make available to you during the Membership Period. We may modify, update or discontinue any aspect of the Services at any time without notice or liability to you or anyone else, and your continued access to or use of the Services will constitute acceptance of such update or modification. Upon the release of any update or modification to any Services, you are responsible for implementing the most current version of such Services at your sole cost and expense.

From time to time, we may make available product documentation for the Services (the “Documentation”) via a method of our choosing (e.g., via the Services). During the Membership Period, we grant to you a limited, non-exclusive, revocable, non-sublicensable, non-transferable right for you to use the Documentation, subject to the terms and conditions set forth in the Agreement, solely to support your use of the Services.

All rights granted herein are subject to your full compliance with all of the terms and conditions of the Agreement, the Documentation, and any terms and conditions of the Third Party Products. All rights in the Services and Documentation not expressly granted herein are expressly reserved by us.

3.2             Customer’s Licenses to Us

(a)              Ownership of Customer Content

As between us on the one hand, and you on the other, you will own all Customer Content (for purposes of clarity, including Personal Data and User Content, and excluding Company Data, Our Materials or other data independently obtained by us from publicly-available sources or third parties).

(b)              License to Personal Data

You grant us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export, share and display your Personal Data, as reasonably necessary (a) to provide and maintain the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by you or our Privacy Policy. Without limiting the foregoing, you hereby expressly permit and direct us to disclose, sell, and share your Personal Information to the members of the Service and the public for such members’ or other persons’ advertising, marketing, sales, leasing, lending, and other related activities and internal business purposes.

(c)              License to User Content

With respect to that portion of Customer Content that consists of videos, images, music, comments, questions, documents, spreadsheets, and any other content submitted, posted, or otherwise made available by you through the Services (“User Content”), by submitting, posting, storing, or otherwise making such User Content available through the Services, you represent and warrant that you have all rights necessary to grant (including without limitation any necessary consents and authorizations from individual persons identified in the User Content and licenses from third parties whose content is included in the User Content) all licenses and rights hereunder. You hereby grant to us and our partners a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, host, store, reproduce, modify, publish, list information regarding, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content, and the names, voice, and/or likeness contained in the User Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, for use in connection with our provision of the Services as described in the Agreement and our Documentation. The foregoing grant to User Content includes but is not limited to information regarding title and legal status, loan documents, personal financial statements, property operating statements, schedule of real estate, current and potential valuations, physical condition and aesthetic/tenant improvement attributes, environmental reports, encumbrances, rent roll and pending lease negotiations, and tenant defaults or issues (“Loan Information”), and you hereby expressly acknowledge and agree that we may sell, license, and otherwise distribute and commercialize such Loan Information, whether alone or in combination with other information, to other users of the Services with no duty of any kind to account to you or any third party for such sale, license, or other distribution or commercialization. You further agree that our making available of such User Content to third parties will not be a violation of our confidentiality obligations under Section 9. Further, you acknowledge and agree that we may collect data relating to your usage of the Services (“Usage Data”) and collect, analyze, and use data developed, derived or otherwise resulting from the analysis or manipulation of User Content (including by the aggregation, commingling or other combination by us of User Content with other data used or collected by us) (“Derivative Data” and, collectively with Usage Data, “Company Data”).

3.3             Responsibilities for Customer Content

We are not responsible for the content of any Customer Content or the way you choose to use the Services to store or process any Customer Content. You represent and agree that you are solely responsible for ensuring compliance with all laws in all jurisdictions that may apply to Customer Content provided hereunder, including but not limited to all applicable international, federal, state, provincial, and local laws, rules, and regulations relating to data privacy and security. Unless otherwise agreed to in writing or as expressly permitted herein, you may not submit any Customer Content that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws including, but not limited to, the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), the Children's Online Privacy Protection Act (COPPA), the General Data Protection Regulation (GDPR) or the California Consumer Privacy Act, as amended by the California Privacy Rights Act (CCPA) or any other data which is considered to be sensitive or which could give rise to notification obligations under all applicable local, state, or federal data breach notification laws. We do not make any representations as to the adequacy of the Services to process your Customer Content or to satisfy any legal or compliance requirements which may apply to your Customer Content, other than as described herein.

3.4            Use of the Services

You must comply with the Agreement. You agree and acknowledge that the licenses granted to you by us are explicitly conditioned on your adherence to the restrictions as set forth in the Agreement and your compliance therewith. We reserve the right, but have no obligation, to investigate any violation of the Agreement and review your conduct for compliance purposes. If we believe there is a violation of the Agreement that can be remedied by your removal of certain Customer Content, we may require you to take direct action to cure such violation. In addition, to the extent legally permissible, we reserve the right to take further appropriate action, as we deem appropriate, including but not limited to circumstances where you do not take appropriate action, or if we believe there is a risk of harm to us, the Services, our other users, or any third parties.

3.5             Acceptable Use

(a)              Technical Restrictions

You shall not engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the servers hosting the Services than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including but not limited to account names, from the Services; (viii) using the Services for any commercial solicitation purposes, including using the Services or data obtained from the Services in connection with offering or providing services that compete with Capitalize’s; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; (xii) reverse engineering, decompiling, disassembling, or otherwise attempting to discover the source code or any portion of any Services; (xiii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein (ixv) disclosing, disseminating, reproducing or  publishing any portion of the Services to any third party in any manner (including via the internet) or permit the same; (xv) processing or combine any portion of the Services or permit any portion of the Services to be processed or combined  with other data or software from any other source; (xvi) allowing access to the Services through any terminals located  outside of Client’s operations or facilities; (xvii) using the Services to create, enhance or structure any database; (xviii) using the Services to create derivative products or derivative datasets; (xix) using the Services in connection with, or to  enable development of, machine learning, rules engines, or other similar automated processor; (xx) using the  Services in connection with artificial intelligence technologies, models, software, platforms or tools including,  without limitation, ChatGPT, Bard and similar artificial intelligence technologies

Accessing any audiovisual content that may be available on the Services for any purpose or in any manner other than Streaming is expressly prohibited unless explicitly permitted by the functionality of the Services. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Services to your device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by you.

(b)              Customer Content Restrictions

You are solely responsible for any Customer Content you submit through the Services. You shall not submit any Customer Content, including but not limited to any User Content, that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; or (ix) to the extent applicable, violates any school or other applicable policy, including those related to cheating or ethics.

You acknowledge and agree that any Customer Content that you submit does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy. To the extent that your User Content contains music, you hereby represent that you are the owner of all the copyright rights, including without limitation the performance, mechanical, and sound recordings rights, with respect to each and every musical composition (including lyrics) and sound recording contained in such User Content and have the power to grant the license granted below. To the extent legally permissible, we reserve the right, but are not obligated, to reject and/or remove any User Content that we believe, in our sole discretion, violates any of these provisions. You understand that publishing your User Content on the Services is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.

(c)              Obligations for Sending Commercial Messages

You shall not communicate or otherwise send electronic commercial e-mails or messages (“Commercial Messages”) via the Services that may be harassing, threatening, indecent, obscene, slanderous, or otherwise unlawful and not engage in spamming or other unsolicited advertising, marketing or other activities, including, without limitation, any activity prohibited by applicable laws, including without limitation the CAN SPAM Act of 2003 and all other federal, state or local laws, rules, regulations, and guidelines in any applicable jurisdiction relating to sending Commercial Messages (“Anti-Spam Laws”).  You shall not display or deliver through any Commercial Message or other Customer Content any false, misleading, deceptive, or unlawful content, sexually explicit materials, or content related to escort or dating services, drugs, dietary supplements, male enhancement products, illegal substances or goods, gambling, affiliate marketing, or work-at-home, get-rich-quick, pyramids, day trading, forex, payday-loan, or similar schemes. You further agree not to communicate or otherwise send any Commercial Messages via the Services unless you have received clear and direct authorization or “opt-in” from the recipient to receive your Commercial Messages and have otherwise provided necessary disclosures about the Commercial Messages and obtained other necessary affirmative consent as required by applicable Anti-Spam Laws or the Agreement (“Opt-In”).  For any Opt-In list of e-mail addresses, phone numbers or other contact information used in the Services, you agree to provide us, at our request, with the source of the addresses/contact information, the method used for recipient Opt-In and details regarding the process used, as well as any other information related to the transaction or sign-up process used, including, without limitation, the date/time of sign up, the IP address of sign up, the website signed up from, disclosures provided in connection with the sign up, the manner of obtaining the recipient’s agreement and whatever other information you asked of the recipient at the point of sign up. When using the Services to send Commercial Messages, you certify that you will not use purchased, rented or traded lists, e-mail append lists or any list containing e-mail addresses (or phone numbers or other applicable contact information) in any other method besides express opt-in that is specific to you. 

If you send Commercial Messages (which, in all cases, shall be subject to recipients’ Opt-In), you hereby assume all responsibility for your acts and omissions thereto. The content of each Commercial Message shall include information on how recipients may unsubscribe from receiving further Commercial Messages from you (“Unsubscribe”) and a valid physical address and otherwise comply with all applicable Anti-Spam Laws. You shall use reasonable efforts to provide recipients with descriptions on how frequently such recipients can expect to receive Commercial Messages from you. You shall process any and all Unsubscribe requests for at least thirty (30) days following the initial Commercial Message and must complete such request within ten (10) business days following the request. You may not charge a fee, require your recipient to provide any other personally identifying information besides an e-mail address or require your recipient to take any step besides sending a reply email or visiting a single web page, as a condition of their request to Unsubscribe. Once you have received an Unsubscribe request from a recipient, you may not sell or transfer that recipient’s email address, individually or as part of a mailing list. You are responsible for all activity occurring under your accounts, including any unauthorized use of your account by any third party. You agree that, as between the parties, you are the sole initiator of any communication transmitted through the Service. We are not responsible for obtaining any necessary consents or permissions from recipients of your Commercial Messages.

We reserve the right, in our discretion, to review your Commercial Messages and recipient and opt-in lists in order to verify that you are in compliance with the terms set forth herein but have no obligation to do so. Any actual or suspected violation of this Section 3.5(c) or applicable laws may result in suspension or termination of your account, in our discretion, and may also lead to civil or criminal liability. 

4.                Term and Termination

4.1             Agreement Term

As further described below, a free membership continues until terminated, while a paid membership has a Membership Period that may expire or be terminated. The Agreement remains effective until all memberships ordered under the Agreement have expired or been terminated or the Agreement itself terminates. Termination of the Agreement will terminate all memberships and all Order Forms.

4.2             Auto-Renewal Memberships and Cancellation

Certain aspects of our Services are available only through paid memberships that automatically renew. MEMBERSHIP RENEWAL FEES WILL BE AUTOMATICALLY CHARGED TO YOUR DESIGNATED PAYMENT METHOD AT THE FEE RATE AND BILLING CYCLE ON YOUR ORDER FORM UNTIL YOU CANCEL. Unless otherwise set forth in an Order Form, (a) all memberships automatically renew for additional periods equal to one (1) year; and (b) the per-unit pricing during any automatic renewal Membership Period will be the then-current price communicated to you by us. Either party can give the other notice of non-renewal at least sixty (60) days before the end of a Membership Period to stop a membership from automatically renewing. Cancellations will apply on a going-forward basis, and you will not be entitled to any refund. You understand that you must cancel your membership at least sixty (60) days before the initial Membership Period or then-current renewal Membership Period to avoid automatic renewal. You may cancel your membership by using our designated online cancellation mechanism or sending an email to sales@capitalize.io with the subject line “MEMBERSHIP CANCELLATION,” and that cancellation will go into effect in at the completion of the then-current Membership Period term. Prices are subject to change. Paid membership for month-to-month Intelligence memberships only can be canceled at any time, and any such cancellation will be effective at the end of your current monthly billing period. You will not receive a refund, although you will continue to have access to Intelligence through the end of your monthly billing period. YOU HEREBY EXPRESSLY AGREE THAT WE MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU UNTIL WE RECEIVE WRITTEN NOTICE FROM YOU THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE COULD REASONABLY ACT UPON SUCH NOTICE. IN THE EVENT THAT YOU OR WE (THROUGH OUR PAYMENT SERVICE PROVIDERS) UPDATE YOUR PAYMENT METHOD TO REMEDY A CHANGE IN VALIDITY OR EXPIRATION DATE, WE MAY AUTOMATICALLY RESUME CHARGING YOU FOR YOUR MEMBERSHIP OR OTHER SUBSCRIPTION TO THE SERVICES WITHOUT FURTHER AUTHORIZATION FROM YOU, UNLESS AND UNTIL WE RECEIVE WRITTEN NOTICE FROM YOU THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD.

4.3             Free Trials

We may offer free trials of certain memberships for specified periods of time without payment. If we offer you a free trial, the specific terms of your free trial will be provided in the Order Form. ONCE YOUR FREE TRIAL ENDS, WE WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR MEMBERSHIP (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR MEMBERSHIP CONTINUES, UNLESS YOU CANCEL YOUR MEMBERSHIP PRIOR TO THE END OF YOUR FREE TRIAL. INSTRUCTIONS FOR CANCELING YOUR MEMBERSHIP ARE DESCRIBED IN SECTION 4.2 ABOVE. PLEASE NOTE THAT YOU WILL NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR MEMBERSHIP HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.

4.4             Termination for Cause

We or you may terminate the Agreement if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides written notice of the breach. We may terminate the Agreement immediately upon notice to you if we reasonably believe that the Services are being used by you in violation of applicable law or that you are misusing the Services (for example, in violation of Section 3.4 or Section 3.5).

4.5             Termination Without Cause

We may terminate the Agreement without cause at any time and for any or no reason; provided that, solely for paid memberships, we will provide you with at least thirty (30) days prior notice. Either party may terminate a free membership at any time by providing the other party written notice.

4.6             Effect of Termination

Upon any termination under Section 4.4 by you, we will refund you any prepaid fees covering the remainder of the Membership Period after the effective date of termination. You will not be entitled to any refund of prepaid fees in any other circumstance, but we may, in our sole discretion, choose to provide you a refund under certain circumstances. Upon any termination by us, you will pay any unpaid fees covering the remainder of the Membership Period after the effective date of termination. In no event will any termination relieve you of the obligation to pay any fees payable to us for the period prior to the effective date of termination. Upon any termination of any kind, you will promptly cease all use of the Services and return and/or permanently delete any Confidential Information, including without limitation any data or other information you procured via the Services, in your possession or control.

5.                Content Removal Policies

5.1             Rate Sheet & Loan Program Content Removal Policy

The Services may show loan programs or rate sheets submitted by users or gathered from third party websites and content gathered from other sources (together “Loan Content”). We may, at any time and without prior notice, screen, remove, edit, or block any Listing Content on the Services, that in our sole judgment violates the Agreement or is otherwise objectionable. To opt-out of Capitalize’s use of your Loan  Content on the Services, email us at copyright@capitalize.io and clearly identify (a) all Loan Content that you would like us to remove from the Services and (b) your contact information. If notified by a user of the Services or content owner that Loan Content allegedly does not conform with the Agreement, we may investigate the allegation and determine in our sole discretion whether to remove the Loan Content on a going-forward basis, which we reserve the right to do at any time and without notice. 

You agree to waive, and hereby do waive, any legal or equitable right or remedy you may have against us with respect to Loan Content. We expressly disclaim any and all liability in connection with Loan Content. For more information on our handling of infringing content, please see the following Section (DMCA Policy).

5.2             DMCA Policy

Since we respect artist and content owner rights, it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, the easiest way to request a removal of such content is by submitting a DMCA-compliant takedown notice through the webform available on the listing page. You can also submit a notice to our Designated DMCA Agent as follows:

DMCA Notice

Capitalize

3421 Via Oporto

Newport Beach, CA 92663

Tel.: (949) 538-2015     

Email:    copyright@capitalize.io

For your complaint to be valid under the DMCA, you must provide the following information in writing:

1.           An electronic or physical signature of a person authorized to act on behalf of the copyright owner;

2.           Identification of the copyrighted work that you claim has been infringed;

3.           Identification of the material that is claimed to be infringing and where it is located on the Service;

4.           Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and, e-mail address;

5.           A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and

6.           A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

Failure to include all necessary information may limit our ability to investigate your claim and may result in your complaint being denied. We may provide your contact information, including the email address and the name of the copyright owner, and/or details of the complaint to the user who posted the allegedly infringing content.

UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.

Please note that this procedure is exclusively for notifying us and our affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Services and/or terminate the membership of any user who infringes any intellectual property rights of others, whether or not there is any repeat infringement.   

6.                Representations; Disclaimer of Warranties

You represent and warrant that you have validly entered into the Agreement and have the legal power to do so, and that you will use the Services in compliance with all applicable laws, rules, and regulations, including without limitation any licensing requirements. ALL INFORMATION PROVIDED TO YOU VIA THE SERVICES IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS PROFESSIONAL ADVICE. NO ACTION SHOULD BE TAKEN BASED UPON INFORMATION PROVIDED VIA THE SERVICES WITHOUT FIRST SEEKING INPUT FROM AN INDEPENDENT PROFESSIONAL WHO IS LICENSED AND/OR QUALIFIED IN THE APPLICABLE AREA. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM, ON BEHALF OF OURSELVES AND ON BEHALF OF OUR VENDORS AND LICENSORS, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE INTEGRITY OF DATA THAT YOU TRANSMIT, TRANSFER, STORE, OBTAIN OR RECEIVE THROUGH USE OF THE SERVICES. YOU ASSUME ALL RISK ARISING FROM YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION YOUR COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

7.                Limitation of Liability

IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE GREATER OF US $100 OR THE TOTAL AMOUNT OF FEES PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS (IF ANY) UNDER THE “PAYMENT TERMS” SECTION ABOVE.

IN NO EVENT WILL WE OR ANY OF OUR VENDORS OR LICENSORS HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

You are responsible for all login credentials, including without limitation usernames and passwords, for your account. We will not be responsible for any damages, losses or liability to you or anyone else, if such information is not kept confidential by you, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.

The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under the Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into the Agreement and the pricing for the Services.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

8.                Indemnification

You agree to defend, indemnify and hold harmless us and our affiliates, licensors, and suppliers, and our and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Services, including your use or access to content or other information (including but not limited to Property Information of other users or third parties) via the Services; (b) your violation of any term of the Agreement, including without limitation any breach of your representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) your violation of any applicable law, rule or regulation; (e) Customer Content or any content that is submitted via your account, including without limitation misleading, false, or inaccurate information; (f) your gross negligence, fraud, or willful misconduct; (g) any other party’s access or use of the Services with your username, password or other appropriate security code; or (h) any dispute between you and any other third party, including without limitation buyers, sellers, lessors, lenders, and brokers, whether in relation to any Transaction Documents or otherwise.

9.                Confidentiality

9.1             Definition

Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information does not include Customer Content that is provided to us as part of the Services (i.e., to list on a public listing). If something is labeled “Confidential,” that is a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

9.2             Protection and Use of Confidential Information

The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Agreement; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement. Notwithstanding the foregoing, Capitalize may use Personal Data in accordance with our Privacy Policy. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Agreement.

9.3             Compelled Access or Disclosure

The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.

10.                Miscellaneous

10.1             Publicity

Neither party may publicly use the other party’s company name, logo, or other trademarks for any purpose without the other party’s prior written consent; provided that we may place your name and logo on our website and other marketing materials for the purpose of identifying you as a user of our products and services and use Customer Content in order to provide the Services or as otherwise provided herein without such consent. All use of the other party’s trademarks, and all goodwill accruing therefrom, will inure to the sole and exclusive benefit of the owner of the trademarks. Such consent is revocable at the owner’s sole discretion.

10.2             Force Majeure

Neither you nor we will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

10.3             Relationship of the Parties; No Third Party Beneficiaries

The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to the Agreement; a person who is not a party to the Agreement may not enforce any of its terms under any applicable law.

10.4             Email Communications

Except as otherwise set forth herein, all notices to you under the Agreement will be by email, although we may instead choose to provide notice to you through the Services. Except as otherwise set forth herein, all notices to us must be sent to info@capitalize.io. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.

10.5             Modifications

We may change these Customer Terms and the other components of the Agreement (except any Order Forms) in accordance with this Section. If we make a material change to the Agreement, we will provide you with reasonable notice prior to the change taking effect, either by emailing the email address associated with your account or by messaging you through the Services. You can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement. Material changes to the Agreement will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If you access or use the Services after the effective date, that use will constitute your acceptance of any revised terms and conditions.

10.6             Waivers

No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

10.7             Severability

The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.

10.8             Assignment

You may not assign or delegate any of your rights or obligations hereunder, whether by operation of law or otherwise, without our prior written consent. We may assign the Agreement in its entirety (including all Order Forms), without consent of Customer, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets. Any purported assignment in violation of this section is void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, and their respective successors and permitted assigns.

10.9             Governing Law

The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that the Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law of the Agreement, any arbitration conducted hereunder shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (the “FAA”).

10.10             Venue; Waiver of Jury Trial; Fees

Subject to Section 10.11 below, the state and federal courts located in Orange County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees. California substantive law will govern all claims (whether in contract, tort, or otherwise) between us, and whether arising from or relating to the transactions contemplated hereby or any other aspect of our relationship, while the FAA will govern the enforceability of our “Arbitration” Section below.

10.11             Arbitration and Class Waiver

Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you may seek relief from us. For any dispute, claim, question or disagreement arising from or relating to the transactions contemplated hereby or any other aspect of your relationship with us (“Claim”), you agree to first contact us at info@capitalize.io, and you and we agree to attempt to resolve the dispute informally. If we have not been able to resolve a dispute within sixty (60) days of your first contact, we each agree to resolve any Claim arising out of or in connection with or relating to the Agreement, then you and we agree that either you or we may, without the other’s consent, require that any Claim be submitted to mandatory individual arbitration, to be administered by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. This arbitration provision is intended to be broadly interpreted. It includes, but is not limited to:

(a)      claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation, or any other statutory or common-law legal theory;

(b)      claims that arose before the existence of this or any prior agreement (including, but not limited to, claims relating to advertising);

(c)      claims for mental or emotional distress or injury not arising out of bodily injury;

(d)      claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and

(e)      claims that may arise after the termination of the Agreement.

The arbitration will be conducted in Orange County, California, unless we agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. The arbitrator may award relief (including, but not limited to, damages, restitution, declaratory relief, and injunctive relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s or entity's claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized relief, class, representative, and private attorney general claims, and consolidation is found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief), then we and you agree that such a claim or request for relief shall be decided by a court after all other claims and requests for relief are arbitrated.  Nothing in this Section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.

10.12             Entire Agreement

The Agreement, including these Customer Terms, any other terms or conditions provided by us in connection with your Services [and any Order Form(s), together with any and all documents referenced herein or therein, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Agreement supersedes the terms of any online agreement electronically accepted by you. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) these Customer Terms and other terms or conditions provided by us in connection with your Services; and (3) any other documents or pages referenced in these Customer Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.

10.13           10.14             Survival

Any section of the Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement shall so survive, including but not limited to Sections 2.3, 2.5, 3.1(a), 3.2, 3.3, 3.5, 4.6, and 5 through 10.

10.15             Contacting Us

Please also feel free to contact us if you have any questions about the Customer Terms or any other part of the Agreement. You may contact us at info@capitalize.io or at our mailing address set forth in Section 5 above. If you are a California resident, in accordance with Cal. Civ. 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 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

SOFTWARE LICENSE AGREEMENT

Last Modified August 26, 2024

TERMS AND CONDITIONS

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY; THIS AGREEMENT IS A BINDING CONTRACT.

SECTION 11 OF THESE TERMS AND CONDITIONS CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IF YOU LIVE IN THE UNITED STATES, THIS SECTION AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE DISPUTES THAT YOU MAY HAVE WITH US. READ IT CAREFULLY.

        The terms and conditions of this Software License Agreement (the “Terms and Conditions”), dated as of the effective date of the Order Form attached hereto (the “Effective Date”) is between you and Roam Technologies Inc. d/b/a Capitalize  (“Capitalize”, “we”, “our” or “us”), a provider of certain proprietary software solutions (the “Capitalize Software”), and it governs your access to and use of the Software Services.  For purposes of this Agreement, “Licensee”, “you” and “your” means you as the undersigned Licensee and your entity, company, organization, any employees, officers, directors, consultants, advisors or other individuals associated or otherwise affiliated with you as the Licensee. You represent and warrant that (i) you are authorized to bind the Licensee pursuant to and in accordance with the terms of this Agreement, (ii) the appropriate person, persons, or entity has authorized and/or approved the execution and delivery of this Agreement and the transaction contemplated herein and (iii) that no further act on the part of any person or entity is necessary to fully approve and authorize your execution and delivery of this Agreement and the consummation of the transactions contemplated herein.  Capitalize and you are occasionally referred to in this Agreement as the “Parties”.

Please read this Agreement carefully.  By clicking “Accept Terms of Software License Agreement” below, you acknowledge that you have read, understood, and agree to be bound by this Agreement.  If you do not agree to this Agreement, then do not use the Software Services.  If you do not agree to any part of this Agreement, you are not permitted to use or access the Software Services or enter into any transactions for the Software Services with Capitalize.

Definitions

For purposes of this Agreement, the following terms have the following meanings:

“Fixes” means minor revisions to the Software Services intended to remove bugs and/or alter minor features that are impairing the Software Services’ functionality.

“Intellectual Property” means all inventions (whether or not protectable under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protectable under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, know-how, ideas (whether or not protectable under trade secret laws), concepts, techniques and all other subject matter protectable under patent, copyright, moral right, mask work, trademark, trade secret, or other laws, including without limitation all new or useful documents, drawings, designs, samples, sampling results, test results, data, analysis, studies, reports, work product, field notes, plans, specifications, models, prototypes, perspectives, software, combinations, discoveries, formulae, manufacturing techniques, business methods, technical developments, artwork, programming, applets, scripts, and designs.

“Licensed Purpose” means use of the Software Services, solely for the use and benefit of your internal business operations and those of your Affiliates. “Affiliates” means any legal entity that directly, or indirectly through one or more entities, you own or that own you or that is under common control with you.  “Control” and “own” mean possessing a 50% or greater interest in an entity or the right to direct the management of the entity.

“Representatives” means, with respect to a Party, the agents, contractors, subcontractors, employees, officers, directors, shareholders, partners, and members of such Party or Affiliates.

“Software Services” means the software, modules, programs, and related documentation for Capitalize’s proprietary Capitalize Software, including the services and software described in {{software summary}}.

“Upgrades” means material revisions to the Software Services, which will contain new features and/or major performance improvements.

“Updates” means minor revisions to the Software Services, which will contain new features or minor improvements.

“Users” means any Representatives who are granted a license under this Agreement to use the Software or Software Services.

1. GRANT OF LICENSE; RESTRICTIONS ON LICENSEE’S USE

1. Subject to Capitalize’s termination right pursuant to Section 4.2, Capitalize hereby grants to Licensee and Licensee hereby accepts a limited, non-exclusive, non-transferable, non-sublicensable and royalty free license to use the Software Services solely for the Licensed Purpose.

2. Capitalize will provide Licensee access to the Software Services in accordance with this Agreement, and will setup and provide access to the Licensee’s account. The initial term of this Agreement will start on the Effective Date. From time-to-time, and during the Term, Licensee may  submit an additional Order Form instructing Capitalize to create other User accounts for additional Users under the terms of this Agreement.

3. Capitalize reserves the right, in its sole discretion, to make any changes to the Software Services that it deems necessary, including any Updates, Upgrades, or Fixes, to (A) maintain or enhance the quality or delivery of its services, the competitive strength of or market for its services, or the Software Services’ cost efficiency or performance; or (B) to comply with law. Capitalize will retain sole control over the operation, provision, maintenance, and management of the Software Services.  If, as a result of such changes, Licensee will not be able to access the Software Services for any period of time, Capitalize will use commercially reasonable efforts to provide Licensee with written notice including the estimated downtime associated with such changes.

4. Licensee will not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to the Software Services or any modified version or derivative work of the Software Services created for Licensee by Capitalize; (b) provide the Software Services, or any modified version or derivative work of the Software Services created for Licensee by Capitalize, on a timesharing, service bureau, or other similar basis; (c) remove or alter any copyright, trademark, or proprietary notice in the software license; (d) develop forked software; (e) copy any features, functions or graphics of the Software Services for any purpose other than what is expressly authorized in this Agreement; (f) use or modify the Software Services in any way that would subject the Software Services, in whole in or in part, to a software license that requires public dissemination of such software; (g) send, store, or authorize a third party to send or store spam, unlawful, infringing, obscene or libelous material, or malicious code; (h) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Software Services; (i) use any Intellectual Property rights protected by applicable laws and contained in or accessible through the Software Services for the purpose of building a competitive product or service or copying its features or user interface; or (j) use the Software Services, or permit them to be used, for purposes of software product benchmarking or other comparative analysis intended for publication without Capitalize's prior written consent.

2. Term

2.1. The term of the license granted under Section 1 will extend from the Effective Date through the period set forth on the Order Form (the “Initial Term”) .  

2.2. Upon the expiration of the Initial Term, the term of this license will automatically renew for additional [12]-month terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”) unless terminated sooner pursuant to Section 4.  Each Renewal Term will renew with respect to the same number of licenses as the previous term, unless the number of licenses is updated by you in writing by submission of an additional Order Form prior to the start of the subsequent Renewal Term.

3. FEES

3.1. In consideration of the Software Services, you agree to pay the Fees as set forth in the Order Form attached hereto (the “Fees”).  From time to time Capitalize will issue you one or more invoices for the Fees, including Capitalize’s reasonable calculation thereof, and you agree to pay each such invoice within 10 days of the invoice date.  Any Fees paid in advance will be non-refundable.

3.2. Upon the commencement of each Renewal Term, Capitalize will issue an invoice to you in an amount equal to the Fees for such Renewal Term, and you agree to pay such invoice within 10 days of the invoice date; provided, that, in connection with the commencement of any Renewal Term, Capitalize reserves the right to change or increase the Fees for such Renewal Term in its sole discretion.

3.3. You acknowledge that, in the event you request that Capitalize change, amend or increase the Software Services provided to you under this Agreement, Capitalize will issue you an invoice for the additional Fees payable in respect of such additional or amended Software Services.  In the event any such additional Software Services are added in the middle of a month, you will be charged in full for that month.  You agree that you will pay any such invoice within 10 days of the invoice date.

4. TERMINATION

4.1. Capitalize may suspend, terminate, or otherwise deny you access to or use of all or any part of the Software Services at any time during the Term and in Capitalize’s sole discretion, without incurring any resulting obligation or liability: (a) if Capitalize receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Capitalize to do so; (b) upon the occurrence of a material breach of this Agreement by you; (c) if you are, or have been, engaging in unlawful activities involving any of the Software Services; (d) for any reason or no reason upon providing a minimum of two (2) business days written notice to you; or (e) if this Agreement expires or is terminated, as stated in this Agreement.

4.2. [Intentionally omitted.]

4.3.  During the Term, you may terminate this Agreement: (a) by providing Capitalize with written notice of non-renewal at least thirty (30) days before the end of the then-current term; or (b) at any time upon the occurrence of a material breach of this Agreement by Capitalize, provided that Capitalize will be notified of the occurrence of such breach in writing and provided thirty (30) days to cure such breach and fails to so.

4.4. Upon the expiration or early termination of this Agreement, in accordance with the terms of this Agreement, whichever occurs first, (a) the rights granted under this Agreement will be immediately revoked and Capitalize may immediately deactivate your account; (b) you will immediately cease use of the Software Services; and (c) the return or destruction of Confidential Information will be handled as contemplated in the final sentence of Section 6.  Sections 1.4, 5, 6, 9, 10, and 11 will survive termination or expiration of this Agreement.

5. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS

5. The Software Services, and all Intellectual Property and proprietary rights therein, are and will at all times remain exclusively the valuable property of Capitalize.

6. Licensee agrees that no title to, proprietary rights or interest in the Software Services, or to any copies thereof, is transferred hereunder to Licensee, other than the specific licenses granted in this Agreement set forth in Section 1.

7. Licensee agrees to respect and not to remove or conceal any copyright, trademark, or other proprietary and confidential notices that may appear on the Software Services, or embedded within the Software Services, including without limitation that appearing on any related documentation.

8. Licensee will not prohibit or enjoin Capitalize from utilizing any skills or knowledge of a general nature acquired during the course of providing the Software Services or responding to feedback, provided that those skills or knowledge of a general nature are not a direct result of any Intellectual Property provided to Capitalize by Licensee in connection with the Software Services.

9. Capitalize acknowledges and agrees that, other than as expressly set forth herein: (a) no licenses are granted by Licensee under or in connection with this Agreement; and (b) neither Capitalize (nor any of its Affiliates) are entitled to any Intellectual Property or other proprietary rights of Licensee under or in connection with this Agreement, in each case other than the limited, revocable, non-assignable, nontransferable rights and license to use any Licensee Intellectual property as necessary for Capitalize to perform the Software Services.

10. Licensee agrees that it will not, and it will not permit any of its Representatives and/or Users to, access or use the Software Services or Intellectual Property except as expressly contemplated by this Agreement. If Licensee becomes aware of any actual or threatened activity prohibited by this Agreement, it will immediately take all reasonable and lawful measures necessary to stop the activity or threatened activity, mitigate its effects, and notify Capitalize of any such actual or threatened activity.

11. Notwithstanding the foregoing, Licensee is and will remain the sole and exclusive owner of all right, title and interest in and to all information and data and other content provided by or on behalf of Licensee to Capitalize to enable the provision of the Software Services, other than any Resultant Data (as defined below) (“Licensee Materials”).   Licensee grants Capitalize a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to use the Licensee Materials during the Term to provide the Software Services hereunder and internally (solely in a de-identified, aggregated and/or anonymized format) to improve and enhance the Services.

12. Licensee acknowledges and agrees that Licensee will not own, nor have any right to access or use, any information, content or material provided, recorded, collected or otherwise made available to Capitalize by Licensee or other individual Users of the Software connection with Capitalize’s provision of the Software Services that Capitalize may de-identify, aggregate and/or anonymize (“Resultant Data”), and Capitalize will have the right to use such Resultant Data for any purpose, including without limitation, to prepare reports and analyses on behalf of Licensee and to develop benchmarking and other reports that may be made publicly available in anonymized form that cannot be used by a third party to derive or ascertain Licensee’s identity or the identity of any User.

6. CONFIDENTIALITY

13. Each Party (a “Recipient”) acknowledges that it will have access to certain confidential information of the other Party (a “Disclosing Party”) concerning the Disclosing Party’s business, plans, clients, technology, products, Intellectual Property, the terms and conditions of this Agreement, other information held in confidence, and documents and playbooks (collectively, “Confidential  Information”).  Confidential Information includes all information in tangible or intangible form that a reasonable person should consider to be confidential whether disclosed in writing or orally, before or after the Effective Date.

14. Confidential Information does not include information that: (a) is known to Recipient prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to Recipient directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known, except through a breach of this Agreement by Recipient; or (d) is independently developed by Recipient.

15. Recipient agrees that neither it nor its Users and/or Representatives will use the Confidential Information except in connection with the provision or use of the Software Services, or as otherwise expressly permitted by this Agreement, nor disclose the Confidential Information to any third party. Recipient also agrees that it will take reasonable precautions to protect the confidentiality of the Disclosing Party's Confidential Information, which precautions will be at least as stringent as Recipient takes to protect its own Confidential Information.  Recipient will promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and use its best efforts to prevent further unauthorized use or disclosure.

16. Recipient will implement appropriate technical and organizational measures designed to safeguard Confidential Information against unauthorized or unlawful processing, access, copying, modification, storage, reproduction, display, or distribution, and against accidental loss, destruction, or damage.

17. If Recipient or its Users and/or Representatives are requested or required to disclose Confidential Information, Recipient will notify the Disclosing Party of such request, where permissible, and will seek to preserve the confidentiality of the Confidential Information by cooperating with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by the applicable tribunal.

7. DATA PRIVACY

18. You and Capitalize will at all times comply in full with the requirements of any applicable privacy and data protection laws.

19. Without limitation of the foregoing, you have, and will retain, sole responsibility for: (a) all of Licensee’s data, including its content and use; (b) all information, instructions, and materials provided to, by or on behalf of Licensee or any authorized User in connection with the Software Services (including, without limitation, any and all personal information, financial information or other data (“User Data”)Users; (c) Licensee’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Licensee or through the use of third-party services (“Licensee Systems”); (d) the security and use of Licensee’s and your authorized users’ access credentials; and (e) all access to and use of the Software Services directly or indirectly by or through the Licensee Systems, with or without Licensee’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

20. You will employ all physical, administrative, and technical controls, screening, security procedures, and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Software Services; and (b) control the content and use of your data and/or any User Data, including the uploading or other provision of personal data or information or Confidential Information.

21. At any time, upon Capitalize’s written request, you agree to execute Capitalize’s data processing agreement in the form provided to you by Capitalize.

8. SUPPORT; UPGRADES, UPDATES, AND FIXES; FEATURE REQUEST

22. Capitalize will provide training and support for the Software Services. Support will be available on a best-effort basis in a timely, efficient, proper and workmanlike manner using reasonable care, skill and diligence. Capitalize will provide manuals for the Software Services in English that are complete, accurate, suitable and sufficiently comprehensive so as to enable you to make full and proper use of and to properly maintain and support the Software Services.

23. Licensee agrees and hereby acknowledges that the Software Services are provided without any other guarantee, except the ones described and provided in this Agreement. Capitalize will provide Licensee with such support, Upgrades, Updates, Fixes, or other maintenance to any bug, failure, or other defect in the Software Services as are required under this Agreement or otherwise agreed by the parties.

24. Licensee may provide Capitalize with details regarding any bug, failure, or other defect in the Software Services, including sufficient information, screenshots, and detail such that Capitalize may reproduce the bug, failure, or other defect in the Software Services. Capitalize may at its sole discretion issue an Update or Fix related to the disclosed bug, failure, or other defect in the Software Services.

25. Licensee may submit requests to Capitalize for additional features to be considered for incorporation into the Software Services, provided that (a) Licensee agrees to waive any claim to any Intellectual Property or property right in such additional feature, only if such feature is developed by Capitalize; otherwise, the Intellectual Property or property right will remain with and be vested in the developer of such feature; (b) Licensee will be prohibited from disclosing such additional feature to any third party; and (c) Licensee will warrant that, to Licensee’s best knowledge, such additional feature does not infringe any Intellectual Property right of a third party.

9. REPRESENTATIONS AND WARRANTIES

26. Capitalize represents and warrants that: (a) it is validly existing under the Laws of the place of its incorporation; (b) it has all necessary right, power and authority to grant this license to Licensee; (c) the Software Services, as made available from Capitalize to Licensee, are free from any known virus or other known malicious code; (d) the Software Services may contain Open Source software, but do not contain or incorporate any software or other materials licensed from any third party under an Open Source Software Copyleft License; and (e) exploitation by the Licensee of the Intellectual Property Rights in the Software Services will not infringe the rights of any third party.

27. You represent and warrant that you have all necessary right, power and authority to enter into this Agreement on behalf of Licensee and exercise the license rights granted to the Software Services.

28. If you use the Software Services on behalf of a company, organization, or other entity, you represent and warrant that (i) the company, organization, or other entity is validly existing under the Laws of the place of its incorporation; (ii) all information provided by you to Capitalize and/or any Users in connection with the Software Services is accurate, complete and not likely to deceive such Users; (iii) such information does not infringe on the rights of any third parties; (iv) you will comply with all relevant and applicable laws and financial reporting obligations, including (but not limited to), laws and obligations relating to registration, tax reporting, political contributions, and asset disclosures; and (v) all access to and usage of the Software Services by you and/or any Users will at all times be in compliance with Capitalize’s {{Customer Terms of Service}} and {{Privacy Policy}}.  

29. THE SOFTWARE SERVICES ARE PROVIDED TO LICENSEE ON AN “AS IS” BASIS. EXCEPT FOR THE CONDITIONS, REPRESENTANTIONS AND WARRANTIES DESCRIBED AND PROVIDED IN IN THIS AGREEMENT, ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CAPITALIZE’S SOFTWARE SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND CAPITALIZE IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES.

10. LIMITATION OF LIABILITY.  CAPITALIZE WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF THIS AGREEMENT OR IN CONNECTION WITH THE DELIVERY, USE, OR PERFORMANCE OF THE SOFTWARE SERVICES EVEN IF CAPITALIZE HAD BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS REVENUES OR FAILURE TO REALIZE EXPECTED SAVINGS.  EXCEPT WITH RESPECT TO ANY INTELLECTUAL PROPERTY CLAIMS, DAMAGES OR LOSSES, PERSONAL DATA BREACHS OR BREACH OF ANY CONFIDENTIALITY OBLIGATION ARISING OUT OF OR AS A RESULT OF THIS AGREEMENT,  CAPITALIZE’S LIABILITY TO LICENSEE ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, WILL EXCEED IN THE AGGREGATE, THE AMOUNT OF $100.

11. BINDING ARBITRATION AND CLASS ACTION WAIVER.  PLEASE READ THIS SECTION 11 CAREFULLY. IF YOU DO NOT REJECT IT AS SET FORTH BELOW, THIS SECTION 11 WILL APPLY, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE, (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING, (3) LESS INFORMATION WILL BE AVAILABLE IN DISCOVERY, AND (4) APPEAL RIGHTS WILL BE LIMITED.

30. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you, or any other User of your Account, and us, our affiliates, and/or agents, if it relates to your Account, your use of the Service, or to this Agreement, except as noted hereafter.

31. Either party may assert an individual case in small claims court or your state’s equivalent court. Any disputes relating to the enforcement, protection, or validity of the intellectual property rights of either party shall not be subject to arbitration. Nothing in this Section 11 shall limit either party from seeking injunctive or other exigent relief from a court of law.

32. Notwithstanding any other language in this Section 11, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this Section 11 of the Agreement. However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide. Further, you and we may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

33.         YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY OTHER ACCOUNTHOLDER OR USER OF THE SERVICE NOT ON YOUR ACCOUNT.

34. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be mailed to 4600 Campus Drive, Newport Beach, CA 92660.

35. The arbitration administrator shall be JAMS, and the arbitration shall be conducted under the Streamlined Arbitration Rules and Procedures of JAMS (“JAMS Rules”) that are in effect at the time the arbitration is initiated. The JAMS Rules can be accessed at http://www.jamsadr.com/rules-streamlined-arbitration/. In the event of a conflict between the terms set forth in this Section 11 of the Agreement and the JAMS Rules, the terms in this Section 11 of the Agreement will control.

36. The arbitrator must apply the same law and legal principles, consistent with the Federal Arbitration Act (“FAA”) that would apply in court, but may use different procedural rules.

37. We will pay all the fees that the administrator or arbitrator charges, unless your claim is for greater than $10,000, in which case the payment of any fees shall be decided by the JAMS Rules.

38. This Section 11 of the Agreement is governed by the FAA. California law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged under the provisions of the FAA.

39. Except for claims subject to arbitration as provided for in this Section 11 (and claims proceeding in any small claims court), all other disputes arising out of or related to your Account, your use of the Service, or to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Los Angeles, CA, and you agree to submit to the personal jurisdiction and venue of such courts. IN SUCH INSTANCES, YOU AND WE EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.

40. Severability. You and we agree that if any portion of this Section 11 is found illegal or unenforceable (except any portion of Section 11.2), that portion shall be severed and the remainder of Section 11 shall be given full force and effect. If Section 11.2 is found to be illegal or unenforceable, then neither you nor we will elect to arbitrate any claim falling within that portion of Section 11.2 found to be illegal or unenforceable, and such claim shall be exclusively decided by a court of competent jurisdiction consistent with Section 11.10. This arbitration provision shall survive termination of this Agreement.

41. REJECTING ARBITRATION. You may opt-out and reject this Arbitration Section 11 of the Agreement. To do so, you must send us a notice within ten (10) days after your Effective Date. The notice must include your name, address and account number, and must be mailed to 4600 Campus Drive, Newport Beach, CA 92660. This is the only way you can reject this Section 11.

12. MISCELLANEOUS

42. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.

43. Publicity. Neither Party will (and will procure that its Affiliates will not) disclose in any material or otherwise (including any electronic media) the existence of this Agreement or the terms of its relationship with the other party without the prior written consent of the other party (which may be withheld in such party’s absolute discretion). Neither party will (and will procure that its Affiliates will not) use the other party’s name or logo (or any other name or logo of any of its Affiliates, and it acknowledges that it has no rights or is otherwise entitled to use the name or logo of any third party with whom the other party is working) in any material or otherwise (including any electronic media) without the prior written consent of the other party (which may be withheld in such other party’s absolute discretion).

44. Entire Agreement; Amendment. This Agreement sets forth the entire understanding and agreement, and supersedes any and all prior agreements, written or oral, between the Parties with respect to the subject matter hereof. This Agreement can only be amended by a writing signed by the authorized representative of each Party.

45. Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the term “days” refers to calendar days, unless preceded with the term “business” which refers to working days, except Saturday and Sunday, and the term “year” refers to the calendar year; and (d) unless set forth expressly otherwise, the term “Section” means a section of this Agreement. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The captions and section headings set forth in this Agreement are for convenience only.  

46. Assignment.  Capitalize may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without our prior written consent, and any unauthorized assignment by you shall be null and void.

47. Waiver; Severability. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. If any term or provision of this Agreement is found to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

48. Governing Law. Except as expressly stated otherwise, this Agreement shall be governed by, and will be construed under, the laws of the United States of America and the law of the State of Delaware, without regard to choice of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

ACKNOWLEDGEMENT AND AGREEMENT

BY CLICKING “ACCEPT TERMS OF SOFTWARE LICENSE AGREEMENT” BELOW, YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOREGOING AGREEMENT AND AGREE THAT YOUR USE OF THE SOFTWARE SERVICES IS AN ACKNOWLEDGMENT OF YOUR AGREEMENT TO BE BOUND BY THE ORDER FORM AND TERMS AND CONDITIONS OF THIS AGREEMENT.