Capria Edge, an information service of Capria Ventures LLC
PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS (“TERMS”) BEFORE ACCESSING OR USING THE CAPRIA EDGE SERVICES AND LICENSED MATERIALS. IF YOU ARE ENTERING INTO THIS END USER AGREEMENT (“AGREEMENT”) ON BEHALF OF A COMPANY OR ANY OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE THE PHRASES "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICES OR LICENSED MATERIALS.
YOU AGREE TO BE BOUND BY THESE TERMS BY EXECUTING THIS AGREEMENT BY CLICKING “ACCEPT AND CONTINUE”. CAPRIA VENTURES LLC RESERVES THE RIGHT TO AMEND, REMOVE, OR ADD TO THESE TERMS AT ANY TIME WITH OUR WITHOUT NOTICE. SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY. IF AT ANY TIME YOU NO LONGER AGREE TO BE BOUND BY THESE TERMS, YOU MUST IMMEDIATELY STOP ACCESSING THE SERVICES, YOU MAY NO LONGER USE LICENSED MATERIALS IN YOUR POSSESSION, AND YOU MUST DELETE ANY LICENSED MATERIALS THAT ARE STORED IN YOUR POSSESSION, IN ACCORDANCE WITH THIS AGREEMENT.
This Agreement is made by and between Capria Ventures LLC, a corporation validly existing under the laws of the state of Washington, USA (“Capria” or “Licensor”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement (“Licensee” or “You”). Licensee and Licensor may be collectively referred to as the “Parties” or individually as a “Party.” The Terms set forth in this Agreement govern Your use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective immediately and continue until the Termination Date.
Except with Capria’s prior written consent, You may not access the Services or Licensed Materials if You directly compete with Capria’s business in any material way.
“Resources” or “Toolkit” means a Capria proprietary (licensed) or third-party (freely available or open source) document or information service that can be used to evaluate and/or enhance various aspects of your business.
“Device” means any kind of computer, smart phone, or electronic device capable of processing data.
“Edge Platform” means the Capria Edge information service, accessed at https://edge.capria.vc, including any upgrades or enhancements made by Capria from time to time.
“Evaluation” means a set of questions to which the User provides answers (typically via a multiple choice or check-box response) as a means for the Edge Platform to score and/or compare your firm’s answers with those of peer firms and/or expectations set by Capria.
“Malware” means computer software or program code that is designed to damage or reduce the performance or security of a computer program or data.
“Termination Date” means April 15, 2021.
“Product” or “Products” means the Edge Platform and Resources.
2.1 You may use the Edge Platform to access the Resources to help improve the cybersecurity preparedness of your firm, including other employees and full-time contractors of your firm.
2.2 You will not and may not permit any third party other than employees and contractors in your firm to access the Edge Platform or the Resources.
2.3 You will not copy or distribute copies of the Resources other than copies made solely for data backup and backup recovery testing purposes.
2.4 Capria may make changes to the Resources at any time without notice.
2.5 With respect to the Edge Platform and the Resources, you agree to (a) comply with all applicable laws, statutes, regulations, and ordinances, (b) only use the Resources for legitimate business purposes, and (c) not use the Resources to construct or transmit Malware.
2.6 You acknowledge that the scoring and recommended content via the Evaluations on the Edge Platform is based on available information at the time it is gathered and may be incomplete, misinterpreted, and is subject to change at any time. As such, the scoring and recommendations are provided for informational purposes only, and you are solely responsible for decisions you make regarding its use of Resources, Toolkits, or services based on such information.
3. Intellectual Property Rights and Privacy
3.1 All right, title and interest in and to the Edge Platform and the Resources, any modifications, translations, or derivatives thereof including any related scripts, tools, and know-how and all applicable intellectual property and proprietary rights thereto remain exclusively with Capria or its licensors. The Products may include software or information products licensed from third parties. Such third parties have no obligations or liability to Licensee under this Agreement but are third-party beneficiaries of this Agreement. Licensee grants Capria a royalty-free license to use and distribute any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Licensee relating to the Products. Except as otherwise expressly provided, Capria grants no express or implied right under Capria patents, copyrights, trademarks, or other intellectual property rights, and all rights not expressly granted to Licensee in this Agreement are reserved to Capria and its licensors. Licensee may not remove any proprietary notice of Capria or any third party from the Products or any copy of the Products.
3. Limited Warranty; No Remedies; Disclaimers
3.1 Until the Termination Date, Capria warrants that the Products, as updated from time to time by Capria and used by Licensee in accordance with the instructions on the Edge Platform and this Agreement, will operate under normal use (“Warranty Period”). Capria does not warrant that: (A) the Products will (i) be free of defects, (ii) satisfy Licensee’s requirements, (iii) operate without interruption or error, (iv) always enable you to avoid cybersecurity attacks or to block access to or exposure to undesired web addresses, emails, Malware, applications and/or files.
3.2 THE WARRANTIES SET FORTH IN THIS SECTION ARE IN LIEU OF, AND CAPRIA, ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, AND FREEDOM FROM PROGRAM ERRORS, VIRUSES OR ANY OTHER MALICIOUS CODE WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT.
4. Limitation of Liability, Indemnification.
4.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CAPRIA, ITS AFFILIATES, ITS LICENSORS OR RESELLERS WILL NOT BE LIABLE FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF GOODWILL, OPPORTUNITY, OR REVENUE; (IV) LICENSEE’S DECISIONS BASED ON ITS INTERPRETATION OF THE OUTPUT FROM THE PRODUCTS; NOR (V) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER FORESEEABLE OR UNFORESEEABLE INCLUDING, BUT NOT LIMITED TO CLAIMS FOR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, PRIVACY, ACCESS TO OR USE OF ANY ADDRESSES, EXECUTABLES OR FILES THAT SHOULD HAVE BEEN AVOIDED, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD-PARTY CLAIMS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CAPRIA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY LICENSEE TO CAPRIA FOR USE OF THE PRODUCTS OVER THE ONE YEAR PERIOD PRIOR TO THE EVENT OUT OF WHICH THE CLAIM AROSE FOR THE PRODUCTS THAT DIRECTLY CAUSED THE ALLEGED LIABILITY.
4.2 In the event of a third-party claim, suit or proceeding against Licensee asserting that use of the Product as permitted in this Agreement infringes a third party's patent, copyright, or trademark right recognized in any jurisdiction where the Product is licensed, Capria at its expense will modify or replace the Product to rectify the infringement. THIS SECTION SETS FORTH CAPRIA’S ENTIRE LIABILITY AND OBLIGATION AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR CLAIMS OF INFRINGEMENT.
5. Term and Termination
5.1 This Agreement continues in full force and effect until the Termination Date, unless terminated earlier as provided for herein.
5.2 Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party commits a non-remediable material breach of the Agreement, or if the other party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching party within thirty (30) days of being notified in writing of such breach.
5.3 Upon notification of termination by either party, Licensee shall no longer have access to the Edge Platform or the Resources provided via the Edge Platform. You may continue to use Resources that you have downloaded to your Device(s) prior to the Termination Date, but you will not get updates to such Resources or receive any warranty or support after termination.
6. Compliance with Laws, Dispute Resolution
6.1 Each party will comply with all applicable laws and regulations, including but not limited to the European Union’s General Data Protection Regulation, that may apply to issues including the protection of personal data, and anti-bribery. Neither party will use any data obtained via the Products for any unlawful purpose.
6.2 Licensee may not transfer any of Licensee’s rights to use the Products or assign this Agreement to another person or entity, without first obtaining prior written approval from Capria.
6.3 Any dispute arising out of or relating to this Agreement or the breach thereof will be governed by the federal laws of the United States and the laws of the State of Washington, USA. Both parties hereby consent to the exclusive jurisdiction of the state and federal courts in Seattle Washington, USA, for all claims, provided however that Capria may seek injunctive relief in any court of competent jurisdiction to protect its intellectual property. Both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue.
6.4 This Agreement is the entire agreement between the parties regarding the subject matter herein and the parties have not relied on any promise, representation, or warranty, express or implied, that is not in this Agreement. Any waiver or modification of this Agreement is only effective if it is in writing and signed by both parties.
6.5 If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement will be interpreted so as reasonably to affect the intention of the parties.