Agreement. These Terms and Conditions (“Terms”), together with a fully-executed Capital Space Order Form that references and incorporates these Terms therein (the “Order”) and any Attachments to the Order Form, (collectively, this “Agreement”) sets forth the terms and conditions under which Capital Space Inc. (“Capital Space”) will provide access to the “Product” specified in the Order Form (the “Product”) to the party that has countersigned the Order Form (“Customer”). Each of Capital Space and Customer may be referred to as a “Party” herein, or together as the “Parties.”

Limited License. Subject to all limitations and restrictions contained herein and the Order, Capital Space grants Customer a term subscription, nonexclusive, and nontransferable right to access and operate the platform as hosted by Capital Space as described in the Order (“Use”) and solely to perform those functions described in the Order and Documentation. For clarity, a “Service” means Capital Space’s proprietary Product that is specifically licensed to Customer pursuant to an Order.

Authorized Users. Customer may permit, as applicable, its employees, service providers, and/or brokers to access and use the Services licensed by Customer for the benefit of Customer (collectively, “Users”).  Use of the Services by Users shall be subject to any additional restrictions and/or fees as set forth in the Order as well as notices and limits on functionality that may be provided within the Service.  Subject to the foregoing, with respect to permitted Users, Customer shall act as the administrator of its account, and shall determine the level of access to the Services and the Customer Content (as defined below) it grants to each such User. At all times, Customer shall be responsible and liable for all actions of its Users. Customer must keep all User passwords secure and confidential; must use commercially reasonable efforts to prevent unauthorized access to its and its User’s account and notify Capital Space promptly of any such unauthorized access; must use the Services only in accordance with this Agreement and applicable law; and must provide true and accurate information in the course of creating user accounts.

Third Party Product. The Services may contain third party Product that requires notices and/or additional terms and conditions. Such required third party Product notices and/or additional terms and conditions may be requested from Capital Space and are made a part of and incorporated by reference into these Terms. By accepting these Terms, Customer is also accepting the additional terms and conditions, if any, set forth therein.

Restrictions on Use.  Customer shall not and shall ensure that each User does not sell, resell, rent or lease the Services or use it in a service provider capacity; use the Services to store or transmit unsolicited marketing, libelous or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third party rights; interfere with or disrupt the integrity or performance of the Services; attempt to gain unauthorized access to the Services or its related systems or networks; except as may be permitted by law, reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services; access the Services to build a competitive service or product, or copy any feature, function or graphic for competitive purposes; utilize the Services in a manner that exceeds the license parameters provided on the relevant Order; use the Services in violation of any Applicable Law (as defined below) or for any purpose not specifically permitted in this Agreement; or introduce, post, or upload to the Capital Space platform any Harmful Code (as defined below).  As used in this Agreement, (1) “Applicable Law” means, with respect to any entity or person, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such entity or person, or any of its properties, assets, or business operations, and (2) “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Capital Space platform or the Capital Space website, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Services to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Services.

Customer License Grant. Customer grants to Capital Space a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Customer data as is reasonable or necessary for Capital Space to perform or provide the Service.

Support Services. Upon payment of the relevant fees on the applicable Order, Customer may receive certain support services for the Service pursuant to the ‘Supplement Support Agreement’. 

PAYMENT

Fees. Customer shall pay Capital Space the fees indicated on the Order. Unless otherwise provided in an Order, all fees are to be paid to Capital Space within thirty (30) days of the date of invoice. Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. If Customer is delinquent on a payment of fees for thirty (30) days or more, Capital Space may suspend access to the Service. Complaints concerning invoices must be made in writing within thirty (30) days from the date of the invoice. Invoices will be sent by electronic delivery unless requested otherwise by Customer, additional fees will apply.

Taxes. The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Capital Space and hold Capital Space harmless for all sales, use, VAT, excise, property or other taxes or levies which Capital Space is required to collect or remit to applicable tax authorities. This provision does not apply to Capital Space’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished Capital Space with a valid tax exemption certificate.

OWNERSHIP AND RIGHTS

Reservation of Rights. By signing the Order, Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership interest in the Product or Capital Space materials provided to Customer. Capital Space will own all right, title, and interest in such Product and Capital Space materials, subject to any limitations associated with intellectual property rights of third parties. Capital Space reserves all rights not specifically granted herein.

Customer Content. All data and content uploaded or transmitted by Customer through the Services into its account or created or generated by Customer within its account in the Services (collectively, “Customer Content”) is and shall remain the property of Customer, as between Capital Space and Customer.  If Customer is given permission by another customer of Capital Space to access such other customer’s account within the Service, then, as between Customer and such other customer, the other customer shall remain the owner and data controller of any data uploaded or manipulated within such other customer’s account.  

Intellectual Property. The Services, and any and all software, workflow processes, APIs, user interfaces, databases, designs, documentation, content created by Capital Space, and other technologies or data provided by Capital Space as part of the Services (collectively, the “Capital Space Intellectual Property”), are and shall remain the property of Capital Space and its licensors, and all right, title and interest in and to the Capital Space Intellectual Property, including all associated intellectual property rights, remain only with Capital Space and its licensors, along with any know-how, inventions, methods or techniques related to the Services developed or conceived as a result of Capital Space providing, or Customer using, the Services, including without limitation any derivative works, improvements or enhancements and/or extensions of the foregoing (collectively, the “Developments”). Customer hereby unconditionally and irrevocably assigns to Capital Space any and all rights it might otherwise acquire in the Capital Space Intellectual Property and any Developments as a result of its use of the Services or otherwise. Customer may not make any modification to the Services, including removal or modification of any proprietary marking or restrictive legends contained therein. Capital Space reserves all rights unless expressly granted in this Agreement.

WARRANTY

Mutual Representations and Warranties.  Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and Orders; (ii) the execution, delivery, and performance of this Agreement, and Orders and the consummation of the transactions contemplated hereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party; (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; and (iv) its performance under this Agreement shall comply with all Applicable Laws.

Customer Representations and Warranties. Customer represents and warrants to Capital Space that it has all necessary rights, and has obtained all necessary consents, to upload the Customer Content and use the Customer Content in connection with the Services, and to grant the rights and licenses granted hereunder with respect to all Customer Content.  Customer further represents and warrants to Capital Space that the Customer Content does not and will not infringe, violate, or misappropriate any right of any third party, including, without limitation, any intellectual property rights.

No Malicious Code. To the knowledge of Capital Space, the Service does not contain any malicious code, program, or other internal component (e.g. computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, or alter the Service, or which could reveal, damage, destroy, or alter any data or other information accessed through or processed by the Service in any manner. This warranty will be considered part of and covered under the provisions of these Terms. Customer must: (i) notify Capital Space promptly in writing of any nonconformance under this warranty; (ii) provide Capital Space with reasonable opportunity to remedy any nonconformance under the provisions of these Terms; and (iii) provide reasonable assistance in identifying and remedying any nonconformance.

DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION “WARRANTY”, THE SERVICES, THE CAPITAL SPACE SITE, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED BY CAPITAL SPACE HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND CAPITAL SPACE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.  TO THE EXTENT THAT CAPITAL SPACE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

TERM

Subscription  Term. This Agreement continues until all Orders have terminated.  The term of each Order (each, a “Subscription Term”) shall be set forth in the applicable Order.

Termination. Either party may terminate this Agreement and/or any Order(s) if the other party (i) is in material breach of this Agreement and has not cured such breach within thirty (30) days of the date of notification by the non-breaching party; or (ii) becomes the subject of insolvency, receivership or bankruptcy proceedings (or such analogous proceedings applicable to a party under local laws) or any other proceedings for the settlement of either party’s debts, or makes an assignment for the benefit of such party’s creditors.  

Capital Space has the right (but not the obligation) to suspend access to the Service or remove any data or content transmitted via the Service without liability (i) if Capital Space reasonably believes that the Service is being used in violation of these Terms or applicable law, (ii) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Capital Space shall use commercially reasonable efforts to notify Customer prior to suspending the access to the Service as permitted under these Terms, or (iii) as otherwise specified in these Terms. Information on Capital Space’s servers may be unavailable to Customer during a suspension of access to the Product. Capital Space will use commercially reasonable efforts to give Customer at least twenty four (24) hours’ notice of a suspension unless Capital Space determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect Capital Space or its customers.

INDEMNIFICATION

Exclusions. Notwithstanding the foregoing, nothing in section “INDEMNIFICATION” shall limit or exclude either party’s liability for any liability that cannot be limited or excluded by Applicable Law

Capital Space Indemnity. Capital Space will indemnify, defend and hold Customer harmless from and against any liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by Customer in connection with any third-party action, claim, or proceeding (each, a “Claim”) to the extent that such third-party Claim alleges that the Service or any Capital Space technology used to provide the Service violates any US copyright, patent, trademark or other intellectual property right of a third party.  If such a third-party Claim appears likely, then Capital Space may, at its expense, (i) procure the necessary rights for Customer to use the Service as provided in this Agreement and the applicable Order, (ii) replace the infringing components of the Service or underlying technology with a substantially functional equivalent, or (iii) suitably modify the Service or underlying technology so that it is non-infringing and functionally equivalent. If Capital Space determines that none of these options are reasonably available, then Capital Space may terminate the applicable Order and refund a pro-rata portion of any Fees prepaid by Customer for Services not yet rendered.   Notwithstanding anything to the contrary herein, Capital Space has no obligation to indemnify, defend, or hold Customer harmless in connection with any Claim arising from (a) Customer’s or any User’s combination of the Service with other technology, services, software or hardware where the infringement would not have occurred but for the combination; (b) any unauthorized modifications, alterations, or implementations of the Service made by or on behalf of Customer (other than by Capital Space); (c) Customer’s or its Users’ use of the Service not in accordance with the documentation provided by Capital Space, this Agreement, and/or an Order; or (d) Customer’s or its Users’ use of the Service in a manner or for a purpose for which they were not designed. This section contains Customer’s exclusive remedies and Capital Space’s sole liability for intellectual property infringement Claims.

Customer Indemnity. Customer will indemnify, defend, and hold Capital Space, its affiliates, its suppliers and hosting providers, and its and their respective officers, directors, members, managers, partners, employees, contractors or agents (“Capital Space Indemnified Parties”) harmless from and against any and all Losses incurred by any Capital Space Indemnified Party in connection with any third-party Claim to the extent such Claim arises out of (i) any allegation  that the Customer Content or any portion thereof, or any use by Capital Space thereof as permitted under this Agreement, infringes, misappropriates, or violates that any patent, copyright, trade secret, contract right or other right of any third party, (ii) Customer’s breach of any of the representations and warranties made under Section WARRANTY above, or (iii) Customer’s gross negligence or willful misconduct.

Indemnification Procedure. Each indemnifying party’s obligations as set forth in this Section are subject to the other party: (i) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (ii) giving the indemnifying party sole control over the defense and settlement of any such claim; and (iii) providing full cooperation in good faith in the defense of any such claim.

LIMITATIONS

Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SERVICE PROVIDER BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEYS FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES.

Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SERVICE PROVIDER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND COSTS, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL.

OBLIGATIONS

No Assignment. Neither party may assign or transfer this Agreement (including by operation of law) or an Order to a third party, except that this Agreement with all Orders may be assigned by Capital Space, without the consent of Customer, as part of a merger, reorganization, change in control, or sale of substantially all the assets, of Capital Space.

Compliance with Laws. Both parties agree to comply with all applicable laws, regulations, and ordinances relating to such party’s performance under these Terms.

Survival. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

Feedback. By submitting ideas, suggestions or feedback to Capital Space regarding the Service, Customer agrees that such items submitted do not contain confidential or proprietary information, and Customer hereby grants Capital Space an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose, without any compensation or attribution to Customer.

Reference Account. Customer shall allow Capital Space to use its name and logo in its marketing communications and materials, in accordance with Customer’s trademark guidelines and policies.

Notices. Any notice required under these Terms shall be given in writing and will be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the Order or to such other address as the parties may designate in writing. Any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached.

Force Majeure. Capital Space will not be liable to Customer for any delay or failure of Capital Space to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Capital Space. Such causes will include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.

Entire Agreement. These Terms together with the documents listed in the applicable Order constitute the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect to the subject matter contained herein. Any signed copy of these Terms made by reliable means will be considered an original.

No Additional Terms. No Waiver. Capital Space rejects additional or conflicting terms of any Customer form-purchasing document.  No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.

Revisions. Capital Space may update or revise this Agreement from time to time in its sole discretion without notice to Customer, and Capital Space recommends that Customer review this Agreement on a regular basis to stay abreast of the most current version. The most current version will be posted on the Capital Space site. Customer’s continued use of the Services after any update or revision to this Agreement constitutes Customer’s acceptance of the updates or revisions. No waiver of this Agreement is effective against a party unless that party signs such waiver in writing. Customer shall appoint an account owner who shall have the authority to add subscriptions to Customer’s account by written request (including email), online/in-app request and other means which may be introduced by Capital Space.  Customer shall be bound by all actions of its account owner. Customer may change the account owner upon written notice to Capital Space

Digital Millennium Copyright Act. Capital Space respects the intellectual property rights of others and attempts to comply with all relevant laws. Capital Space will review all claims of copyright infringement received and remove any content deemed to have been posted or distributed in violation of any such laws. Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:

Capital Space Legal Department

299 Park Avenue, 42nd Floor, New York, NY 10171

[email protected]

If you believe that your work has been copied on the Capital Space platform or website in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Website where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.