Terms of Use

Effective Date: March 30, 2021

TERMS OF USE

1. WELCOME
Welcome to CAPSULE! Capsule provides a new way for businesses to create original video content through Capsule’s applications, websites, content, products, and services (individually and collectively, the “Services”). The Services are owned and operated by Capsule.Video, Inc. (“CAPSULE”, “we,” “us,” “our”).
These Terms of Use (“Terms”) govern the access and use of any Service made available by CAPSULE and its parents, subsidiaries, representatives, affiliates, officers and directors by you or a customer. Wherever used in these Terms, “you”, “your” or similar terms, they mean the person or legal entity accessing or using a CAPSULE Service; and “Customer” means the person or legal entity accessing or using a Capsule Service who also has paid for additional features, tools, databases, licenses or content as either a non-Enterprise Customer or an Enterprise Customer (defined below). “You” and “your” also includes any user of the Services such as Customer’s customers, end users and community members (collectively, “Customer End Users”). If you will be using the Services on behalf of an organization, you agree to these Terms on behalf of that organization and you represent that you have the authority to do so. In such case, “you” and “your” will refer to that organization.
An “Enterprise Customer” is a Customer who subscribes to a CAPSULE Service under a separate agreement. Enterprise Customers through which you access or use the CAPSULE Service may have additional terms and conditions that apply to you.
2. ACCEPTING THESE TERMS OF USE
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND CAPSULE. BY ACCESSING OR USING A CAPSULE SERVICE, YOU CONFIRM YOUR AGREEMENT TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE. EXCEPT AS PROVIDED HEREIN, THESE TERMS EXPRESSLY SUPERSEDE PRIOR AGREEMENTS OR ARRANGEMENTS WITH YOU. CAPSULE MAY IMMEDIATELY TERMINATE THESE TERMS OR ANY SERVICES WITH RESPECT TO YOU, OR GENERALLY CEASE OFFERING OR DENY ACCESS TO THE SERVICES OR ANY PORTION THEREOF, AT ANY TIME FOR ANY REASON.
TO THE EXTENT THESE TERMS CONFLICT WITH THE TERMS OF AN AGREEMENT CAPSULE HAS ENTERED WITH AN ENTERPRISE CUSTOMER, THE TERMS OF THE AGREEMENT BETWEEN CAPSULE AND THE ENTERPRISE CUSTOMER SUPERCEDE.
IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH CAPSULE ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
3. SUPPLEMENTAL TERMS; MODIFICATION TO THESE TERMS
Supplemental terms may apply to certain Services, such as policies for a particular event, program, trial, activity or promotion, and such supplemental terms will be disclosed to you in separate disclosures (e.g., a particular webpage on CAPSULE or a CAPSULE application) or in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
CAPSULE may amend these Terms from time to time. Amendments to these Terms will be effective upon CAPSULE's posting of such updated Terms on the applicable Service or this location, in the amended policies, or supplemental terms on the applicable Service(s)(e.g., at the time of a content submission). Your continued access or use of the Services after such posting confirms your consent to be bound by the Terms, as amended. If CAPSULE changes these Terms after the date you first agreed to the Terms (or to any subsequent changes to these Terms), you may reject any such change by providing CAPSULE written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective Date" date above. This written notice must be provided by you either (a) mail or hand delivery to our registered agent for service of process, c/o Capsule.Video, Inc., or (b) by e-mail to: legal@capsule.video. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to these Terms. By rejecting changes, you are agreeing that you will continue to be bound by the provisions of these Terms as of the date you first agreed to the Terms (or to any subsequent changes to these Terms).
CAPSULE’s collection and use of personal information in connection with the Services is described in CAPSULE's Privacy Policy, located at https://capsule.video/privacy.
4. ARBITRATION AGREEMENT
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against CAPSULE on an individual basis in arbitration, as set forth in this Arbitration Agreement. This will preclude you from bringing any class, collective, or representative action against CAPSULE, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against CAPSULE by someone else.

4.1. Agreement to Binding Arbitration Between You and CAPSULE.

You and CAPSULE agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and CAPSULE, and not in a court of law.
You acknowledge and agree that you and CAPSULE are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and CAPSULE otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and CAPSULE each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.

4.2. Rules and Governing Law.

The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. ("FAA"), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of New York.

4.3. Process.

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of New York and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

4.4. Location and Procedure.

Unless you and CAPSULE otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and CAPSULE submit to the Arbitrator, unless you request a hearing or the Arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

4.5. Arbitrator's Decision.

The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. CAPSULE will not seek, and hereby waives all rights CAPSULE may have under applicable law to recover attorneys' fees and expenses if CAPSULE prevails in arbitration.

4.6. Arbitrator Fees.

Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed (one thousand dollars) $1000, CAPSULE will pay all such fees, unless the Arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

4.7. Changes.

Notwithstanding the provisions in Section 1 (Welcome) and Section 2 (Accepting These Terms of Use) above, regarding consent to be bound by amendments to these Terms, if CAPSULE changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing CAPSULE written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided either (a) by mail or hand delivery to our registered agent for service of process, c/o Capsule.Video, Inc., or (b) by email from the email address associated with your Account to: legal@Capsule.Video. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and CAPSULE in accordance with the provisions of this Arbitration Agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).

4.8. Severability and Survival.

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
5. LICENSES
Subject to your compliance with these Terms and all applicable laws and regulations:

5.1. CAPSULE grants you a limited, personal, non-exclusive, non-sublicensable, non-assignable, revocable, non-transferable license to access and use the Service solely to create original video content using the tools and functionality provided by CAPSULE provided, however, that you may not create video content for third parties other than as expressly permitted by CAPSULE;
5.2. CAPSULE grants Customer a limited, personal, non-exclusive, non-sublicensable, non-assignable, revocable, non-transferable license to access and use the Service, subject to the subscription plan to which Customer has subscribed, the right to create original video content, stream, store, distribute, publicly perform and display video content created by Customer and/or Customer End Users using the tools and functionality provided by CAPSULE for the internal business purpose of Customer; and
5.3. CAPSULE grants Customer and Customer End Users a limited, personal, non-exclusive, non-sublicensable, non-assignable, revocable, non-transferable license to download, install, use, access, embed, display and run a copy of any embeddable video player, content creation tool or other downloadable software or content on a personal device or website, as applicable.
5.4. Customer represents, warrants and covenants that any act or omission by any Customer End User, which, if it were an act or omission of the Customer would be a breach of these Terms, shall be deemed to be a breach of these Terms by Customer.
5.5. Any rights not expressly granted herein are reserved by CAPSULE.

6. RESTRICTIONS
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by CAPSULE; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
You may not (a) resell or file-share Licensed Content separately from your videos; (b) use or distribute Licensed Content other than as expressly permitted herein; or (c) create works that contain, in substance, only Licensed Content.
7. THIRD PARTY SERVICES
The Services may be made available or accessed in connection with third party services and content (including advertising) that CAPSULE does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third party services and content. CAPSULE does not endorse such third party services and content and in no event shall CAPSULE be responsible or liable for any products or services of such third party providers.
8. OWNERSHIP
The Services and all rights therein are and shall remain CAPSULE's property or the property of CAPSULE's licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner CAPSULE's company names, logos, product and service names, trademarks or services marks or those of CAPSULE's licensors.
9. ACCESS AND USE OF THE SERVICES

9.1. User Accounts.

In order to use some aspects of the Service, CAPSULE Customers may be required to register for and maintain an active personal user Service account.
Certain users (e.g., Customer End Users) may not be required to create or maintain an account in order to access and use a CAPSULE Service. However, CAPSULE Customers may require you to create an account under their service. CAPSULE may not have control over the information you provide such Customers.
CAPSULE may associate certain information you provide through the Services, such as name, telephone number, or email address, to an internal account maintained by CAPSULE in order to provide you with our Service. In all cases an account associated with you, whether created by you directly or internally (whether temporary or permanent) by CAPSULE, is referred to herein as an “Account”.
You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to use the Service and, if applicable, create an Account, unless a specific Service of CAPSULE expressly permits otherwise. If you are under eighteen (18) years old and would like to use the Services you may only do so under the supervision of a legal parent or guardian, who will be considered the user of the Services.
Account registration requires Customers to submit to CAPSULE certain personal information, such as your name, address, mobile phone number, email and age, as well as at least one valid payment method supported by CAPSULE. To the extent applicable, you agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access or use the Service. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by CAPSULE in writing, you may only possess one Account.

9.2. Text Messaging and Telephone Calls.

You agree that CAPSULE may contact you by telephone, e-mail, or text messages (including by an automatic telephone dialing system) at any of the phone numbers or e-mails provided by you or on your behalf in connection with a CAPSULE account, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any property, goods or services. You also understand that you may opt out of receiving text messages from CAPSULE at any time by contacting legal@Capsule.Video. If you do not choose to opt out, CAPSULE may contact you as outlined in its User Privacy Policy, located at https://capsule.video/privacy

9.3. Network Access and Devices.

You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and any updates thereto. CAPSULE does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
10. SUBSCRIPTIONS AND PRICING (APPLICABLE TO CAPSULE CUSTOMERS ONLY)
You may enroll in one of CAPSULES Services on a subscription basis. If you choose to enroll, you acknowledge that CAPSULE is a subscription service and you will have recurring payment obligations. You accept responsibility for all recurring payment obligations prior to termination or expiration of the subscription that you have subscribed for according to the terms of the subscription plan to which you have subscribed. If you have enrolled in a subscription, CAPSULE will charge your payment method at the times and in the amounts as described in the CAPSULE Pricing Schedule (https://capsule.video/pricing). All prices in the Pricing Schedule do not include any applicable sales, use, excise or any other tax. Any applicable taxes will be added at time of invoicing and such CAPSULE Customers agree to pay same. SUBSCRIPTIONS AUTOMATICALLY RENEW UNTIL CANCELLED BY YOU, UNTIL THE SUBSCRIPTION IS CANCELLED BY US OR UNTIL WE TERMINATE ACCESS TO OR USE OF THE SERVICES IN ACCORDANCE WITH THESE TERMS. FEES OR CHARGES DURING ANY SUCH RENEWAL TERM SHALL BE THE SAME AS THAT DURING THE PRIOR TERM UNLESS OTHERWISE DESCRIBED ON THE PRICING SCHEDULE, IN WHICH CASE THE INCREASE SHALL BE EFFECTIVE UPON RENEWAL AND THEREAFTER.
CAPSULE may from time to time provide certain Customers with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and Customer agrees that such promotional offers and discounts, unless also made available to Customer, shall have no bearing on Customer’s use of the Services or the charges applied to Customer. Payments are final and non-refundable, unless otherwise determined by CAPSULE.
Cancelling Subscriptions. You are solely responsible for cancelling your subscription. You may cancel through the Service by logging into your account and selecting the option to cancel your subscription or by notifying us at our contact details provided. Unless specified otherwise in writing, you may cancel a CAPSULE subscription at any time up to the cutoff date and time which is the day prior to the next renewal term. Any other type of cancellation will not be considered.
11. DISCLAIMERS; LIMITATION OF LIABILITY.
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." CAPSULE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, CAPSULE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CAPSULE DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
CAPSULE SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF CAPSULE, EVEN IF CAPSULE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CAPSULE SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF CAPSULE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CAPSULE SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND CAPSULE'S REASONABLE CONTROL.
YOU ACKNOWLEDGE THAT CAPSULE CUSTOMERS ARE THIRD PARTY PROVIDERS WHO CAN USE THE SERVICE TO CREATE ORIGINAL VIDEO CONTENT WITH THE PARTICIPATION OF CUSTOMER END USERS. YOU MAY BE USING THE SERVICE TO RESPOND TO A QUESTIONNAIRE, SURVEY, FORM, OR POST CONTENT, PREPARED BY ONE OF THOSE CUSTOMERS. YOU AGREE THAT CAPSULE HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY ACTS, OMMISIONS, VIEWS OR OPINIONS PROVIDED TO YOU OR OTHER THIRD PARTIES BY CAPSULE CUSTOMERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, CAPSULE’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON CAPSULE’S CHOICE OF LAW PROVISION SET FORTH BELOW.
12. INDEMNITY.
You agree to indemnify and hold CAPSULE and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) CAPSULE's use of your User Content (defined below); or (iv) your violation of the rights of any third party, including CAPSULE customer.
13. PROPRIETARY RIGHTS IN CONTENT ON CAPSULE

13.1. User Content License

CAPSULE does not claim any ownership rights in the text, messages, files, images, photos, video, sounds, musical works, sound recordings, works of authorship, applications, or any other materials (collectively, “Content”) that you transmit, submit, display or publish (“post”) on, through or in connection with the CAPSULE Service. After posting your Content on, through or in connection with the CAPSULE Service, you continue to retain any such rights that you may have in your Content, subject to the limited license granted herein. By posting any Content on, through or in connection with the CAPSULE Service, you hereby grant to CAPSULE a limited license to use, modify, delete from, add to, combine with other content, publicly perform, publicly display, reproduce, transmit, sell, distribute, and otherwise exploit such Content by all means and manners now or later known, including, without limitation, on, through or in connection with the CAPSULE Service to third party applications; widgets; websites; or mobile, desktop or other services which are linked with your Account (collectively, “Linked Services”), including, without limitation, distributing part or all of the CAPSULE Services and any Content included therein, in any media formats and through any media channels. Content submitted by you and authorized by you to be distributed on Linked Services need not be maintained on the CAPSULE Service by us for any period of time, and you will not have the right, once submitted, to access, archive, maintain or otherwise use such Content on the CAPSULE Service or elsewhere. The license you grant is perpetual; provided, however, that after you remove your Content from the CAPSULE Service, we will make commercially reasonable efforts to remove such specific deleted Content from further distribution on the CAPSULE Service, as soon as practicable but, please be aware that any distribution of your Content that may have occurred by you or other users via Linked Services, or otherwise (e.g., contributed to a collection of Content from multiple users, etc.) may continue to be displayed, distributed and used. Further, deleted Content may persist in archival copies on CAPSULE servers for a reasonable period of time. You understand and agree that once Content is distributed to a Linked Service, or incorporated into other aspects of the CAPSULE Services (e.g., as part of a derivative work), CAPSULE is under no obligation to delete or ask other users or a Linked Service to delete that Content; therefore, it may continue to appear and be used indefinitely. The foregoing limited license shall be further limited by the provisions of an applicable agreement entered between CAPSULE and an Enterprise Customer.
The license you grant to CAPSULE is non-exclusive, fully-paid and royalty-free, sublicensable, and worldwide. You also hereby grant to CAPSULE, and agree to grant to CAPSULE, the unconditional, perpetual, irrevocable, sublicensable, fully-paid and royalty free right to use, share and exploit your name, persona, and likeness, and information about your activities on the CAPSULE Services (including, without limitation, your activities in connection with CAPSULE Customers), without any obligation or remuneration to you. However, from time to time we may offer you choices regarding how information about you is shared and we will make good faith efforts to honor your elections. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any Content. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the rights granted hereunder. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 13 (Proprietary Rights in Content on CAPSULE). If you are a minor, you represent and warrant that your parent or legal guardian has consented to you granting the rights as set forth in this Section 13, or that are provided in any additional terms.
Except as otherwise described in the applicable CAPSULE Service’s posted, or any additional terms, you agree that (a) your Content will be treated as non-confidential - regardless of whether you mark them “confidential,” “proprietary,” or the like - and will not be returned, and (b) CAPSULE does not assume any obligation of any kind to you or any third party with respect to your Content. Upon CAPSULE’s request, you will furnish us with any documentation necessary to substantiate the rights to such Content and to verify your compliance with these Terms and any applicable additional terms. You acknowledge that the internet, and the technology of CAPSULE and third parties used to enable it, may be subject to breaches of security and that you are aware that submissions of Content may not be secure, and you will consider this before submitting any Content.

13.2. Reward for Posting

Subject to the restrictions provided in this Section 13 (Proprietary Rights in Content On Capsule), CAPSULE and its Customers are free to use and exploit your Content without any need to compensate you. CAPSULE, at its sole discretion, may issue you a reward for posting your original content through a CAPSULE Service or for responding to a survey or questionnaire. To the extent you are eligible to receive a reward through a CAPSULE Service, you must provide accurate information to CAPSULE, including information required to register you with the Service and information sufficient to issue you the reward. You will not create a fake profile including a profile on behalf of someone else. If you do not provide CAPSULE with the information necessary for CAPSULE to issue you a reward, you agree that you forfeit the reward and CAPSULE does not owe you any reward. CAPSULE Customers may offer rewards at their sole discretion under a separate agreement or terms.

13.3. User Representations and Warranties

Each time you submit any Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor (including yourself) who is depicted in or contributed to any Content you submit, and that, as to that Content: (i) you are the sole author and/or owner of the Content posted by you on, through or in connection with the CAPSULE Services, or otherwise have the lawful right to grant the license set forth in this Section 13 or that is provided in any additional terms, all without any CAPSULE obligation to obtain consent of any third party and without creating any obligation or liability of CAPSULE, (ii) the Content is accurate; (iii) the posting of your Content on, through or in connection with the CAPSULE Services and/or Linked Services does not violate the privacy rights, publicity rights, intellectual property rights, contract rights or any other rights of any person or entity; and (iv) the Content will not violate these Terms (including the prohibitions in Section 15 (Content/Activity Prohibited) or any additional terms, or cause injury or harm to any person. You agree to pay all royalties, fees, and any other monies owing any person or entity by reason of the use of any Content posted by you on or through the CAPSULE Services and/or Linked Services.

13.4. CAPSULE Content Limited License

The CAPSULE Services contain Content owned by CAPSULE (“CAPSULE Content”). CAPSULE Content is protected by copyright, trademark, patent, trade secret and other laws, and CAPSULE owns and retains all rights in the CAPSULE Content and the CAPSULE Services. CAPSULE hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the CAPSULE Content (excluding any software code) solely for your personal use in connection with viewing the CAPSULE Website and using the CAPSULE Services, and in connection with use of a standard Internet browser (e.g., for making cache copies). From time to time, CAPSULE may make available to users certain explicitly designated CAPSULE Content for users use as part of User Content (defined below) (“CAPSULE Licensed Elements”), but only for such purposes as may be explicitly stated at the time that the CAPSULE Licensed Elements are made available on the CAPSULE Services; but we and our licensors and certain other third parties, as the case may be, retain ownership of such CAPSULE Licensed Elements. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, any CAPSULE Content, and (ii) may be immediately suspended or terminated for any reason, in CAPSULE’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of CAPSULE Content and/or CAPSULE Licensed Elements, subject to certain additional terms. You are only granted a limited license, and, as between you and CAPSULE, there is not a sale with respect to CAPSULE Content.
These Terms and any additional terms include only narrow, limited grants of rights to CAPSULE Content and to use and access the CAPSULE Services. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by CAPSULE and its licensors and other third parties. Any goodwill that is created in connection with your use of CAPSULE Content or the CAPSULE Services inures to CAPSULE. Any unauthorized use of any CAPSULE Content or the CAPSULE Services for any purpose is prohibited.

13.5. User Content Use Restrictions

The CAPSULE Services contain Content of users (“User Content”)(e.g., Customer End Users). Except as otherwise provided within these Terms, or in any additional terms, you may not copy, download, communicate, make available, modify, translate, publish, broadcast, transmit, distribute, perform, display, sell or otherwise use any User Content appearing on or through the CAPSULE Services.

13.6. Third Party Content Use Restrictions

The CAPSULE Services contain Content of third party licensors that are not users (such licensors, “Third Party Licensors” and such content “Third Party Content”). Third Party Content is protected by copyright, trademark, patent, trade secret and other laws, and each Third Party Licensor retains rights in its Third Party Content. Subject to any applicable additional terms (e.g., of a CAPSULE Customer), you are hereby granted a limited, revocable, non-sublicensable license to view, or listen to, as applicable, the Third Party Content solely for your personal, non-commercial use in connection with viewing and using the CAPSULE Services and in connection with standard search engine activity or use of a standard Internet browser (e.g., for making cache copies). Except for the foregoing limited license, and except as otherwise expressly provided in writing by CAPSULE, you are granted no right, title or interest in any Third Party Content. You are only granted a limited license, and, as between you and CAPSULE, there is not a sale with respect to Third Party Content. Except as otherwise provided within these Terms or applicable additional terms, or directly authorized by CAPSULE and/or a Third Party Licensor on the CAPSULE Services (e.g., as part of a promotion that encourages you to download specific Third Party Content for your use in connection with such promotion), you may not copy, download, communicate, make available, modify, translate, publish, broadcast, transmit, distribute, perform, display, sell or otherwise use any Third Party Content (except as may be a result of standard search engine activity or use of a standard Internet browser).

13.7. Additional CAPSULE Customer Licenses and Terms and Conditions relating to Content

Additional licenses, terms and conditions of CAPSULE Customers who request Content from you through a Capsule Service may also apply.

13.8. Content Storage

CAPSULE reserves the right to limit the storage capacity of Content that you post on, through or in connection with the CAPSULE Services.
14. CONTENT POSTED
Please choose carefully the information that you post or upload on, through or in connection with the CAPSULE Services.
CAPSULE may reject, refuse to post or delete any Content that, in the sole judgment of CAPSULE, violates these Terms, is inappropriate for the CAPSULE Services or which may be offensive, illegal or violates the rights of any person or entity, or harms or threatens the safety of any person or entity. However, we are not obligated to take any action not required by law. CAPSULE, may, but assumes no responsibility or obligation for reviewing or monitoring the CAPSULE Services for inappropriate Content or conduct. If at any time CAPSULE chooses, in its sole discretion, to review or monitor the CAPSULE Services, CAPSULE nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content.
You are responsible for the Content that you post on, through or in connection with any of the CAPSULE Services and/or Linked Services. Any breach by you of this Section 14 (Content Posted) will be subject to the indemnification obligations set forth in in these Terms. CAPSULE Customer further represents, warrants and covenants that Customer shall also be responsible for the Content posted by any of its Customer End Users as if it were the Customer who posted the Content.
15. CONTENT/ACTIVITY PROHIBITED

15.1. Prohibited Content

We limit use of the CAPSULE Services to Content and activities that are appropriate, in our discretion, to our venue. The following are examples, without limitation, of the kind of Content or activities that are illegal, or prohibited to post on, through or in connection with the CAPSULE Services (“Prohibited Content”). CAPSULE reserves the right to investigate and take appropriate action (which may include taking legal action) against anyone who, in CAPSULE’s sole discretion, violates this provision, including, without limitation, removing the offending Content from the CAPSULE Services, terminating the subscription or accounts of such violators and/or reporting such Content or activities to law enforcement authorities. CAPSULE may seek to gather information from a user who is suspected of violating these Terms and from any other third party, and will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any emails, or publishing or otherwise making available any Content that is believed to violate these Terms. BY ACCEPTING THESE TERMS YOU WAIVE AND HOLD HARMLESS CAPSULE FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY CAPSULE DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUNCE OF INVESTIGATIONS BY EITHER CAPSULE OR LAW ENFORCEMENT AUTHORITIES.

15.2. Prohibited Content includes, but is not limited to, Content that, in the sole discretion of CAPSULE:

is patently offensive or promotes or otherwise incites racism, bigotry, hatred or physical harm of any kind against any group or individual;
harasses or advocates harassment of another person;
exploits people in a sexual or violent manner;
contains nudity, excessive violence, or offensive subject matter or links to an adult website;
solicits or is designed to solicit personal information from anyone under age 13;
solicits or is designed to solicit an inappropriate or unlawful relationship with another User;
publicly posts information that poses or creates a privacy or security risk to any person (including, for example, by publicly posting any person’s contact information on the CAPSULE Services without authorization);
constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
constitutes or promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music, video or links to pirated music or video files;
furthers, promotes or depicts any illegal or criminal activity or enterprise or provides instructional information
about illegal activities including, but not limited to, making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses;
depicts firearms or other weapons that is not related to sportsman activities;
solicits or is designed to solicit passwords or personal identifying information for commercial or unlawful purposes from other users;
includes a photograph or video of another person that you have posted without that person’s consent;
uses sexually suggestive imagery or any unfair, misleading or deceptive Content intended to draw traffic to the profile; or
violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person.

15.3. Prohibited Content, including unauthorized commercial advertisements, endorsements, affiliate links, and other forms of unauthorized data collection or solicitation may be removed from Profiles without notice or explanation.
15.4. The following are examples of the kind of activity that is illegal or prohibited on the CAPSULE Website and through your use of the CAPSULE Services (“Prohibited Activity”). Prohibited Activity on, through, or in connection with the CAPSULE Services includes, but is not limited to:

criminal or tortious activity, including, but not limited to, child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, defamation, stalking, spamming, sending of viruses or other harmful files, copyright infringement, patent infringement, trademark infringement, or theft of trade secrets;
unless permitted by law, circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or software that is part of the CAPSULE Services;
activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network;
except as may be permitted by additional terms or our intended use of functionality made available by us to you on the CAPSULE Services, modifying, copying, distributing, downloading, scraping or transmitting in any form or by any means, in whole or in part, any Content from the CAPSULE Services (other than your Content which you legally post on, through or in connection with the CAPSULE Services);
interfering with, disrupting, or creating an undue burden on the CAPSULE Services or the networks or services connected to the CAPSULE Services;
impersonating or attempting to impersonate CAPSULE or a CAPSULE employee, administrator or moderator, or person or entity (including, without limitation, the use of email addresses associated with or of any of the foregoing);
using or distributing any information obtained from the CAPSULE Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;
displaying an unauthorized commercial advertisement, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the CAPSULE Services on behalf of that person;
using invalid or forged headers to disguise the origin of any Content transmitted to or through CAPSULE’s computer systems, or otherwise misrepresenting yourself or the source of any Content;
using any automated system, including, but not limited to, robot, both rover, spider, scraper, crawler, spyware, scripts, engine, device, software, extraction tool in order to monitor, harvest, copy or distribute (except as may be a result of standard search engine activity or use of a standard Internet browser) Content or other personal information of users, or other data from the CAPSULE Services for the purposes of sending unsolicited or unauthorized material, selling to data aggregators or similar entities, or revealing personal information publicly;
engaging in, either directly or indirectly, or encouraging others to engage in, click-throughs generated through any manner that could be reasonably interpreted as coercive, incentivized, misleading, malicious, or otherwise fraudulent;
the unauthorized posting of any private information of any person;
modifying, adapting, translating, altering, reverse engineering, copying, decompiling, reverse assembling, disassembling, unencrypting, unhashing, or creating derivative works (as defined by the U.S. Copyright Act) or improvements (as defined by U.S. patent law) from any portion of the CAPSULE Services or the data or technology underlying their operation; or
using the CAPSULE Services in a manner inconsistent with these Terms or applicable law.

16. OTHER PROVISIONS

16.1. Choice of Law.

These Terms are governed by and construed in accordance with the laws of the State of New York, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region. However, the choice of law provision regarding the interpretation of these Terms is not intended to create any other substantive right to non-New York residents to assert claims under New York law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided, are only intended to specify the use of New York law to interpret these Terms and the forum for disputes asserting a breach of these Terms, and these provisions shall not be interpreted as generally extending New York law to you if you do not otherwise reside in New York. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 4 (Arbitration Agreement) or to any arbitrable disputes as defined therein. Instead, as described in Section 4 (Arbitration Agreement), the Federal Arbitration Act shall apply to any such disputes.

16.2. Notice.

CAPSULE may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to CAPSULE, with such notice deemed given when received by CAPSULE, at any time by first class mail or pre-paid post to our registered agent for service of process, c/o Capsule.Video, Inc.
Registered agent: Corporation Service Company
251 Little Falls Drive
Wilmington, DE 19808
copy: legal@Capsule.Video

16.3. General.

You may not assign these Terms without CAPSULE's prior written approval. CAPSULE may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of CAPSULE's equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, CAPSULE, or any other third party provider as a result of these Terms or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. CAPSULE's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by CAPSULE in writing. This provision shall not affect the Severability and Survivability section of the Arbitration Agreement of these Terms.

Terms of Use

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