(for Retailers and Other Employers)
Effective Date: 2018-06-01
Last Updated Date: 2018-06-01
PLEASE BE AWARE THAT SECTION 15 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS BETWEEN EMPLOYERS DOING BUSINESS IN THE UNITED STATES AND CAPANGO ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.
- Use of the Services and Capango Properties. Capango has developed technology that is designed to (i) facilitate the identification and recruitment by Employers of Seekers based on the Seeker’s purported qualifications and interests (“Powers and Passions”), and (ji) assist Employers in finding and interacting with Seekers who have Powers and Passions that may be useful to Employers. The Services and the software and certain information and content related thereto (collectively, the “Capango Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Capango grants you a limited license to reproduce portions of Capango Properties for the sole purpose of using the Services for your internal business purposes, including the recruitment of Seekers for employment opportunities with Employer (the “Permitted Purpose”). Unless otherwise specified by Capango in a separate license, your right to use any Capango Properties is subject to the Agreement.
- Application License. Subject to your compliance with the Agreement, Capango grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on mobile device(s) or computer(s) that you own or control and to run such copy of the Application solely for the Permitted Purpose. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Agreement of Service.
- Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Capango Properties or any portion of Capango Properties, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Capango Properties (including images, text, page layout or form) of Capango; (c) you shall not use any metatags or other “hidden text” using Capango’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Capango Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access Capango Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of Capango Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Capango Properties. Any future release, update or other addition to Capango Properties shall be subject to the Agreement. Capango, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of Capango Properties terminates the licenses granted by Capango pursuant to the Agreement.
- Registering Your Account. In order to access certain Employer features of Capango Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a User who has registered an account on the Website or Application (“Account”) or has a valid account on the social networking service (“SNS”) through which the User has connected to the Services (each such account, a “Third-Party Account”).
- Access Through a SNS. If you access the Capango Properties through a SNS as part of the functionality of the Website, the Application and/or the Services, you may link your Account with Third-Party Accounts, by allowing Capango to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to Capango and/or grant Capango access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Capango to pay any fees or making Capango subject to any usage limitations imposed by such third-party service providers. By granting Capango access to any Third-Party Accounts, you understand that Capango may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Capango Properties that you have provided to and stored in your Third-Party Account (“SNS Content”) so that it is available on and through Capango Properties via your Account. Unless otherwise specified in the Agreement, all SNS Content shall be considered to be Seeker or Employer Content (as defined in Section 3) for all purposes of the Agreement. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Capango Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Capango’s access to such Third-Party Account is terminated by the third-party service provider, then SNS Content will no longer be available on and through Capango Properties. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by accessing the “Settings” section of the Website. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND CAPANGO DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Capango makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Capango is not responsible for any SNS Content.
- Registration Data. In registering an account, you agree to (1) provide true, accurate, current and complete information as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are not a person or entity barred from using Capango Properties under the laws of the United States, your place of residence or any other applicable jurisdiction, and you are authorized to represent and bind the Employer identified during registration to this Agreement. Each Employer is responsible for all activities that occur under any Account associated with it. Each Employer also agrees that it shall monitor its applicable Accounts, and will accept full responsibility for any unauthorized use of Capango Properties by minors. Users may not share Accounts or password with anyone, and agree to (1) notify Capango immediately of any unauthorized use of their password or any other breach of security; and (2) exit from its Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Capango has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Capango has the right to suspend or terminate the applicable Account(s) and refuse any and all current or future use of Capango Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Capango reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Capango Properties if you have been previously removed by Capango, or if you have been previously banned from any of Capango Properties.
- Responsibility for Content. You acknowledge that all files, materials, data, text, audio, video, images or other content, including Capango Properties (“Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not Capango, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) on public forums and public areas of Capango Properties (“Your Public Content”), and that you and other Seekers or Employers using Capango Properties, and not Capango, are similarly responsible for all Content they Make Available through Capango Properties (“Seeker or Employer Content”).
- Capango Properties. Except with respect to Your Public Content, and Seeker or Employer Content, you agree that Capango and its suppliers own all rights, title and interest in Capango Properties (including but not limited to, any computer code). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, Application or Capango Properties.
- Trademarks. , and other related graphics, logos, service marks and trade names used on or in connection with Capango Properties or in connection with the Services are the trademarks of Capango and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Capango Properties are the property of their respective owners.
- Other Content. Except with respect to Your Public Content, you agree that you have no right or title in or to any Content that appears on or in Capango Properties.
- Your Public Content. Capango does not claim ownership of Your Public Content. However, when a User posts or publishes Your Public Content on or in Capango Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Public Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Public Content.
- License to Your Public Content. Subject to any applicable account settings that you select, you grant Capango a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Public Content (in whole or in part) for the purposes of operating and providing Capango Properties to you and to third parties, including Seekers. Please remember that others may search for, see, use, modify and reproduce any of Your Public Content that you submit to any “public” area of Capango Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Public Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Capango, are responsible for all of Your Public Content that you Make Available on or in Capango Properties.
- Your Profile. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter. You may not post or submit for print services a photograph of another person without that person’s permission.
- Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Capango through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Capango has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Capango a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Capango Properties.
- Conduct. As a condition of your use of the Capango Properties, you agree not to use Capango Properties for any purpose that is prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through Capango Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves illegal or immoral activities; (v) impersonates any person or entity, including other employers or retailers; (vi) interferes with or attempt to interfere with the proper functioning of Capango Properties or uses Capango Properties in any way not expressly permitted by the Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Capango Properties, including but not limited to violating or attempting to violate any security features of Capango Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Capango Properties, introducing viruses, worms, or similar harmful code into Capango Properties, or interfering or attempting to interfere with use of Capango Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Capango Properties.
- Interactions with Others.
- Your Responsibility. You are solely responsible for your selection, screening, interactions and/or relationship with Seekers and others; provided, however, that Capango reserves the right, but has no obligation, to intercede in such disputes. You agree that Capango will not be responsible for any liability incurred as the result of (i) such selection, screening, interactions, or relationship, (ii) any employment decision you may make, (iii) any failure to identify or recruit Seekers, (iv) the acts or omissions of Seekers, or (v) other similar matters.
- Content Provided by Others. Capango Properties may contain Seeker or Employer Content provided by others, such as job posting information. Capango is not responsible for and does not validate or control Seeker or Employer Content. Capango has no obligation to review, validate, or monitor, and does not approve, endorse or make any representations or warranties with respect to Seeker or Employer Content or any Seeker or Employer. You use all Seeker or Employer Content and interact with potential Seekers and others at your own risk.
- Third-Party Services.
- Third-Party Websites, Applications. Capango Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”). When you click on a link to a Third-Party Website or Third-Party Application, we will not warn you that you have left Capango Properties and are subject to the Agreement and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Applications are not under the control of Capango. Capango is not responsible for any Third-Party Websites or Third-Party Applications. Capango provides these Third-Party Websites or Third-Party Applications only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Applications, or their products or services. You use all links in Third-Party Websites or Third-Party Applications at your own risk. When you leave our Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
- App Stores. You acknowledge and agree that the availability of the Application is dependent on the third party from whom you received the Application license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that the Agreement is between you and Capango and not with the App Store. Capango, not the App Store, is solely responsible for Capango Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Capango Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Capango Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce them.
- Employer Usage Fees and Account Funding.
- Capango will charge you, and you will pay, for the Services in accordance with Capango’s then current price list as published on the Website, subject to any available promotional discounts that may apply from time to time for you. The price list is subject to change. Fees will apply for certain Employer related postings and activities and/or access to, or distribution of, certain Content. All amounts are in USD, unless otherwise provided.
- Capango may require that you pre-pay fees for the Services (the “Advance Funding”). Capango may apply fees or other amounts due against the Advance Funding balance in accordance with Capango’s then current policies, practices and price list published on the Website and the other provisions of this Agreement. Capango may disable or suspend Services in its sole discretion if you have not provided sufficient Advance Funding or Capango has a good faith concern regarding your ability to pay or compliance with this Agreement.
- You will provide Capango with valid and updated credit card information or another form of payment acceptable to Capango. If you provide credit card information, you represent that you are authorized to use the card and you authorize Capango to charge the card for all payments hereunder, including Advance Funding approved by you. By submitting payment information, you authorize Capango to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by Capango for purposes of acknowledging or completing any payment, including Advance Funding obligations.
- All Advance Funding and other amounts paid by you to Capango are non-refundable and non-cancellable, unless expressly provided otherwise. If you believe a payment has been processed in error, you must provide written notice to Capango within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by Capango within such thirty (30) day period, the payment will be deemed final and accurate.
- Fees do not include 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 purchases and transactions under this Agreement. If Capango is legally required to pay or collect any Taxes on your behalf, Capango will invoice you and you will pay the invoiced amount or Capango may charge your credit card or deduct such amounts from any Advance Funding balance. For clarity, Capango will be solely responsible for taxes assessed on Capango based on its income.
- Disclaimer of Warranties and Conditions.
- As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF CAPANGO PROPERTIES IS AT YOUR SOLE RISK, AND CAPANGO PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. CAPANGO PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CAPANGO OR THROUGH CAPANGO PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. YOU ACKNOWLEDGE AND AGREE THAT CAPANGO PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD CAPANGO PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON OR RELATING TO THE SERVICES, INCLUDING BUT NOT LIMITED TO EMPLOYERS, RECRUITERS AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. CAPANGO MAKES NO WARRANTIES WITH RESPECT TO THE SUCCESS OR FAILURE OF AN EMPLOYER’S RECRUITMENT ACTIVITIES, THE ACCURACY OF ANY SEEKER CONTENT, OR A SEEKER’S QUALIFICATIONS OR PERFORMANCE.
- FROM TIME TO TIME, CAPANGO MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT CAPANGO’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
- No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS AND SEEKERS. YOU UNDERSTAND THAT CAPANGO DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OR SEEKERS, SUCH AS WITH RESPECT TO QUALIFICATIONS OR INTERESTS OR LEGAL ELIGIBILITY FOR EMPLOYMENT.
- Limitation of Liability.
- Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL CAPANGO PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH CAPANGO PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF OPPORTUNITIES, OR BUSINESS INTERRUPTION, WHETHER OR NOT CAPANGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHERS ARISING FROM THE CAPANGO PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A CAPANGO PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A CAPANGO PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A CAPANGO PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL CAPANGO PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNTS YOU PAID CAPANGO DURING THE SIX (6) MONTHS PRIOR TO THE LAST EVENT OR CIRCUMSTANCE GIVING RISE TO LIABILITY. THIS CAP APPLIES IN THE AGGREGATE AND NOT PER CLAIM OR EVENT.
- Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CAPANGO AND YOU.
- Procedure for Making Claims of Copyright Infringement. It is Capango’s policy to terminate usage rights of any User who repeatedly infringes copyright upon prompt notification to Capango by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Capango Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Capango Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written 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; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Capango’s Copyright Agent for notice of claims of copyright infringement is as follows: Copyright Agent, South49 Solutions, Inc. 46040 Center Oak Plaza, Suite 160 Sterling, VA, 20166-6595.
- Breach. In the event that Capango determines, in its sole discretion, that you have breached any portion of the Agreement, or have otherwise demonstrated conduct inappropriate for Capango Properties, Capango reserves the right to delete any of Your Public Content provided by you or your agent(s) to Capango Properties and/or discontinue your registration(s) with the any of Capango Properties, including any access to or use of the Services.
- International Users. Capango Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Capango intends to announce such Services or Content in your country. Capango Properties are controlled and offered by Capango from its facilities in the United States of America. Capango makes no representations that Capango Properties are appropriate or available for use in other locations. Those who access or use Capango Properties from other countries do so at their own volition and are responsible for compliance with local law.
- Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. To the extent permissible by applicable law, this Section 15 requires Users resident in the United States to arbitrate disputes with Capango and limits the manner in which such Users can seek relief from Capango.
- Applicability of Arbitration Agreement. Employers agree that any dispute or claim relating in any way to your access or use of the Services, to any products sold or distributed through the Services, or to any aspect of your relationship with Capango, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; (2) you or Capango may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) and (3) in jurisdictions outside the U.S. where this Arbitration Agreement is not enforceable, you may have certain rights to go to court in that jurisdiction under applicable local law that cannot be waived. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH CAPANGO, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST CAPANGO ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE CAPANGO IN AN ARBITRATION PROCEEDING SOLELY BETWEEN YOU AND CAPANGO AND NOT AS PART OF CLASS. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
- Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent at South49 Solutions, Inc. 46040 Center Oak Plaza, Suite 160 Sterling, VA, 20166-6595. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Capango. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us.
- Waiver of Jury Trial. YOU AND CAPANGO HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Capango are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS BY THE PARTIES AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL PARTY RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE ENTITY CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER ENTITY.
- 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: South49 Solutions 46040 Center Oak Plaza, Suite 160 Sterling, VA, 20166-6595, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Capango username (if any), the email address you used to set up your Capango account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
- Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Capango.
- General Provisions.
- Electronic Communications. The communications between you and Capango use electronic means, whether you visit Capango Properties or send Capango e-mails, or whether Capango posts notices on Capango Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Capango in an electronic form; and (2) agree that all Agreement and conditions, agreements, notices, disclosures, and other communications that Capango provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
- Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Capango’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Capango shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Capango Properties, please contact us at: South49 Solutions, Inc. Attn: Questions, Complaints & Claims, 46040 Center Oak Plaza, Suite 160 Sterling, VA, 20166-6595. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
- Exclusive Venue. Both you and Capango agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Virginia.
- Governing Law THE AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF VIRGINIA, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE AGREEMENT.[a]
- Notice. Where Capango requires that you provide an e-mail address, you are responsible for providing Capango with your most current e-mail address. In the event that the last e-mail address you provided to Capango is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Capango’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Capango at the following address:South49 Solutions, Inc. 46040 Center Oak Plaza, Suite 160 Sterling, VA, 20166-6595. Such notice shall be deemed given when received by Capango by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
- Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
- Export Control. You may not use, export, import, or transfer Capango Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Capango Properties, and any other applicable laws. In particular, but without limitation, Capango Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Capango Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Capango Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Capango are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Capango products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
- Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
End of Agreement