Updated: June 27, 2023
1. THE TERMS OF SERVICE
These Cape Privacy Terms of Service (these “Terms”) apply to your use of Cape Services, as the same may be made available and provided by Cape and its subsidiaries, affiliates and licensors.
These Terms are a legally binding contract between you (“you” or “Customer”) and the Cape Entity (as defined in Section 12, below) (“Cape,” “we,” or “us”) so please read carefully. If you do not agree with these Terms, you may not register for or use any of the Services.
If you are using the Services on behalf of an organization, you are agreeing to these Terms on behalf of yourself and that organization and representing and warranting to Cape that you have the authority to commit your organization to these Terms (in which event, “you” and “your” will refer to that organization). If your organization has a separate written contract in effect with us, the terms of that contract will govern your use of the Services.
To use the Services, you must be legally permitted to accept these Terms. YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS.
These terms are effective upon the earliest of (the “Effective Date”): (a) your first use of the Services, (b) your agreement to these Terms, or (c) the date specified in an applicable Order (defined below).
2. ACCESS TO THE SERVICES
Cape hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to access and use the Services as specified in the Order. This license is valid only during the Subscription Term, and solely for Customer’s internal business use. This license is also subject to all of these Terms, including without limitation, the payment of the Fees specified in Section 3. If any portion of the Services includes locally installed software, such software may only be used by Customer in object form, and pursuant to and in connection with a valid license to the Services, and during the applicable Subscription Term only.
2.2. Use Restrictions
Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the Cape Technology; (b) interfere in any manner with the operation of the Cape Technology or the hardware and network used to operate the Service; (c) sublicense or transfer any of Customer’s rights under these Terms, or otherwise use the Services or Cape Technology for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the Services or Cape Technology; or (e) otherwise use the Services or Cape Technology in any manner that exceeds the scope of use permitted under Section 2.1 hereof.
2.3. Licensed Users
Customer will be liable to Cape for any breaches of these Terms by its Licensed Users.
3. FEES, PAYMENT AND SUSPENSION OF SERVICE
3.1. Fees and Payment Terms
Fees for access and use of the Services and any Professional Services (collectively, “Fees”) will be specified in the Order. Unless otherwise stated in an Order, all Fees are due 30 days from Cape’s invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with Cape. Any payment not received from Customer by the due date will accrue (except with respect to charges then under reasonable and good faith dispute), at Cape's discretion, interest at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Except as otherwise specified in the Order or these Terms, all Orders are non-cancellable, and all Fees are non-refundable.
Unless otherwise stated, the Fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Cape's net income or property. If Cape has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Cape with a valid tax exemption certificate authorized by the appropriate taxing authority.
3.3. Audit Rights
Cape shall have the right to confirm compliance with these Terms and for billing purposes as needed.
3.4. Suspension of Service
If Customer's account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Cape may suspend Customer’s access to the Services without liability to Customer, until such overdue amounts are paid in full.
4. CONFIDENTIAL INFORMATION
Each party agrees: (a) to hold the other party’s Confidential Information in strict confidence; (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein; and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 4.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
5. CUSTOMER DATA
5.1 Customer Data Ownership
Customer retains all right, title and interest in and to the Customer Data. Cape will only use Customer Data in the course of providing the Services under these Terms. Customer will be solely responsible for providing all Customer Data required for the proper operation of Services. Customer grants to Cape all necessary licenses in and to such Customer Data solely as necessary for Cape to provide the Services and related services (including Support Services) to Customer.
Customer is solely responsible for the Customer Data and will not provide or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Cape may take remedial action if Customer Data violates this Section 5, however, Cape is under no obligation to review Customer Data for accuracy or potential liability. All use of the Services in conjunction with any Customer Data is the responsibility of Customer.
6. OWNERSHIP OF SERVICE
6.1. Cape Intellectual Property Rights
Customer acknowledges that Cape retains all right, title and interest in and to the Services and all software, materials, formats, interfaces, information, data, content and information and technology used by Cape or provided to Customer in connection with the Services or Professional Services, and any modifications to or derivative works of any of the foregoing (the “Cape Technology”), and that the Cape Technology is protected by intellectual property rights owned by or licensed to Cape. Other than as expressly set forth in these Terms, no license or other rights in the Cape Technology are granted to the Customer, and all such rights are hereby expressly reserved by Cape. Cape shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations, requirements or other feedback provided by Customer relating to the Services. Cape may compile aggregated data and other statistical information related to Customer’s use of the Services, including Customer Data, and may use such information to improve the Services, provided, however, that such use does not reveal Customer Confidential Information or the identity of Customer to third parties.
7. PROFESSIONAL SERVICES
7.1. Provision of Professional Services
Cape will provide the professional services for Customer as set forth in an Order (“Professional Services”). The Cape personnel that Cape assigns to perform the Professional Services will be professional and qualified in the performance of the applicable Professional Services. If Customer, in its reasonable judgment, believes that Cape personnel assigned to a project do not meet the requirements in this section, Cape will in good faith discuss alternatives and will replace Cape personnel as reasonably necessary.
7.2. Customer Assistance
Access to applicable Customer Materials (defined below), resources, personnel, equipment or facilities is necessary for the provision of Professional Services. Customer agrees to provide such access and to cooperate with Cape during a Professional Services project. Cape will not be liable for any problems resulting from Customer’s breach of its obligations under this Section 7.2.
7.3. Customer Materials
Customer hereby grants Cape a limited right to use any materials provided to Cape in connection with Professional Services projects (the “Customer Materials”) solely for the purpose of providing Professional Services to Customer. Customer will retain any of its rights (including all intellectual property rights) in and to the Customer Materials. Cape will treat Customer Materials subject to the confidentiality obligations under Section 4 (Confidential Information). Customer warrants that it has sufficient rights in the Customer Materials to grant the rights to Cape under these Terms and that Cape’s use of Customer Materials will not violate the rights of any third-party rights.
7.4. License to Deliverables
The Professional Services and the resulting Deliverables are generally applicable to Cape’s business and are part of Cape Technology. Subject to these Terms, Cape hereby grants Customer a limited, non-exclusive, royalty-free, non-transferable worldwide license to use the Deliverables solely in connection with such Customer’s licensed use of the Services pursuant to these Terms.
7.5. Change Orders
Customer may submit written requests to Cape to change the scope of Professional Services under an existing Order. Cape will promptly notify Customer if it believes that the requested change requires an adjustment to the fees, schedule, assumptions or scope for the performance of the Professional Services. Neither party is bound by a change request unless agreed in writing by both parties pursuant to a mutually executed amendment or change order (each, a “Change Order”). Cape will continue to perform Professional Services pursuant to the existing Order unless the parties mutually agree to such amendment or change order. Cape may use subcontractors to deliver Professional Services but will remain responsible for their performance of those Professional Services under the applicable terms and conditions of these Terms. For clarity, Customer will be responsible for any consumption and other fees for the Services that are generated as part of the Professional Services.
8. TERM AND TERMINATION
You may elect one of the following subscription plans and billing options (each, a “Subscription Plan”). Please note that not all of the Subscription Plan options will be available depending on the Services purchased.
8.1. Pay as You Go
In a pay as you go plan (“Pay As You Go Plan“), you will be billed based on Services usage, and the subscription period will be for one calendar month with automatic renewal (without the need to execute a renewal Order) until terminated under this agreement. You may cancel your Pay As You Go Plan at any time, with such cancellation effective three business days after Cape receives your cancellation notice. Any fees incurred through the termination date are due upon invoice. Ordinarily, invoices are issued monthly, in arrears, and are due upon receipt.
8.2. Monthly Subscription Plan
In a monthly subscription plan ("Monthly Subscription Plan"), the subscription period will be for one calendar month and will automatically renew (without the need to execute a renewal Order) unless you cancel your Monthly Subscription Plan at least three business days prior to the renewal date. You will be invoiced on or about the same day each month, on or around the Monthly Subscription Plan renewal date.
8.3. Annual Subscription Plan
In an annual subscription plan ("Annual Subscription Plan"), the subscription period will be for one calendar year and will automatically renew (without the need to execute a renewal Order) for additional one-year periods each year on the anniversary unless you cancel at least 30 days prior to your renewal date. You will be invoiced annually on or about the same day each year, on or around the Annual Subscription Plan renewal date. Note that under the Annual Subscription Plan you will not be permitted to cancel or downgrade the Cape Services you have selected until the next anniversary date.
8.4. Changing Subscription Plans
If you select the Pay As You Go Plan, you may be able to switch to the Monthly Subscription Plan or Annual Subscription Plan. Any fees incurred through the termination date are due upon invoice. If you select the Annual Subscription Plan, you may not change to another subscription plan until the end of the one-year term of your Annual Subscription Plan. Additional Subscription Plans may be as set out in an Order.
8.5. Invoicing and Credit Cards
You may be required to provide a credit card or similar automatic payment means upon signing up for the Services. For Pay As You Go Plans and Monthly Subscription Plans, we will invoice you as indicated above, and, at the same time, charge the payment method on file.
Unless otherwise specified in the Order, the initial Subscription Term will be as set out in Sections 8.1-8.4, above. Your right to use the Services per these Terms will automatically renew as specified in Sections 8.1-8.4, above (each a “Renewal”) unless or until terminated in accordance with these Terms. Together, the Initial Subscription Term and any Renewals constitutes the “Term.” Cape may increase the Fees applicable hereunder at any time on prior written notice to Customer. Any Fee increase will take effect from the start of the next applicable Renewal.
8.7. Termination for Convenience
Either party may terminate these Terms for convenience by providing at least 60 days written notice to the other party prior to the expiry of the then-current Term.
8.8. Termination for Breach
Either party may terminate these Terms upon written notice if the other party materially breaches the Terms and does not cure such breach (if curable) within 30 days after written notice of such breach.
8.9. Effect of Termination
Upon the termination of these Terms for any reason, (a) any amounts owed to Cape under these Terms before such termination will become immediately due and payable; (b) Customer’s right to use the Services will cease, and (c) each party will return to the other all property (including any Confidential Information) of the other party in its possession or control.
Sections 3, 6, 8.9, 8.10, 9, 10 and 11 and any other sections hereof which ought reasonably to survive will survive the termination or expiration of these Terms.
9.1. Representations and Warranties by Each Party
Each party represents, warrants to the other party that: (a) it is a corporation or limited liability company, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (b) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under these Terms; (c) the execution and delivery of these Terms and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; and (d) it will perform its duties and obligations hereunder in a careful, diligent, professional, proper, efficient and business-like manner.
9.2. Cape Warranties
Cape warrants that: (a) the Services will operate in substantial conformity with the applicable Documentation and (b) Professional Services and Deliverables will be provided in a professional and workmanlike manner and substantially in accordance with the specifications in the applicable Order. If Cape is not able to correct any reported non-conformity with this warranty, either party may terminate the applicable Order, and Customer, as its sole remedy, will be entitled to receive a refund of any prepaid but unused Fees for the applicable Services. This warranty will not apply if the error or non-conformance was caused by misuse of the Services or Deliverables, modifications to the Services or Deliverables by Customer or any third party, or third-party hardware, software, or services used in connection with the Services. For Professional Services and Deliverables, this warranty will not apply unless Customer provides written notice of a claim within 90 days after provision of the Professional Services at issue.
EXCEPT FOR ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS, CAPE MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND CONCERNING THE SERVICE, PROFESSIONAL SERVICES, OR CAPE TECHNOLOGY, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS OF A PARTICULAR PURPOSE OR ANY OTHER WARRANTIES OF CONDITIONS ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE. CAPE DOES NOT WARRANT THAT THE SERVICE WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE OR VIRUS-FREE. THE SERVICE, PROFESSIONAL SERVICES, THE CAPE TECHNOLOGY, SUPPORT SERVICES AND ALL OTHER DATA, MATERIALS AND DOCUMENTATION PROVIDED BY CAPE IN CONNECTION WITH THESE TERMS ARE PROVIDED ‘AS IS’ AND ‘AS AVAILABLE’ WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), INCLUDING, BUT NOT LIMITED TO, LOST DATA OR LOST PROFITS AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE SERVICE OR CAPE TECHNOLOGY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. CAPE’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THESE TERMS, THE SERVICE OR CAPE TECHNOLOGY (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT) WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO CAPE BY CUSTOMER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER’S FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY HEREUNDER.
Cape will indemnify, defend and hold Customer harmless for all losses, damages, liabilities and costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any claim, suit or proceeding brought by a third party against Customer arising from an allegation that the Services or Cape Technology infringe, misappropriate or otherwise violate any third party’s intellectual property rights or privacy or other rights (a “Claim”). Customer will promptly notify Cape of the Claim for which indemnity is being sought and will reasonably cooperate with Cape in the defense or settlement thereof. Cape will have the sole right to conduct the defense of any Claim for which Cape is responsible hereunder (provided that Cape may not settle any claim without the Customer's prior written approval, which approval may not be unreasonably withheld or delayed). Customer may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if Cape refuses to fulfill its obligation of defense, Customer may defend itself and obtain reimbursement from Cape.
Cape will not be liable for, and will have no indemnification obligation in connection with, any Claim based on (a) Cape's compliance with any specifications or directions created by Customer; (b) combinations of the Services with any other items, devices, data or programs that could not be reasonably anticipated in light of the scope of Services and that were not otherwise approved by Cape; or (c) any material modification to the Services made by Customer or Customer’s representatives without Cape’s authorization.
If the use, sale, offer for sale, import, export, or other exploitation of the Services is enjoined by a court, if delivery is precluded by a government entity, or should Cape refuse to provide or supply the Services to avoid a potential third party claim, Cape will seek to avoid any disruption to Customer and will: (i) secure for Customer the right to use the Service; or (ii) modify or replace the Services with equivalent non-infringing services. In the event that the foregoing remedies are not commercially reasonable, Cape may terminate these Terms, and Customer’s license, upon notice to Customer of the termination. Upon such termination, Cape must also provide a pro rata refund to Customer of any prepaid fees for the portion of the Subscription Term which was terminated. Payment of such refund will be Customer’s sole remedy, and Cape’s sole obligation, in case of a termination pursuant to this Section 11.
12. THE CAPE ENTITY, GOVERNING LAW, AND VENUE
The “Cape Entity” entering into this Agreement with you, the laws that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have exclusive jurisdiction over any such dispute or lawsuit, depend on where you are located, as determined by the first Customer address you provided (regardless of any technical or legal “domicile” determination). In case there is no such address provided, you will be considered located in the United States, for purposes of this Section 12.
The relevant parties and provisions are as set out below.
If you are located in the United States:
- The Cape Entity is Cape (US) Inc., a Delaware corporation,
- Governing Law is the State of New York, and
- Courts with exclusive jurisdiction are the state and federal courts located in New York, New York.
If you are located anywhere outside the United States:
- The Cape Entity is Cape Inc., a Canadian Corporation,
- Governing law is the laws of Nova Scotia and Canada, and
- Courts with exclusive jurisdiction are the courts located in Nova Scotia, Canada.
13. GENERAL PROVISIONS
Neither party may assign any rights or obligations arising under these Terms, whether by operation or law or otherwise, without the prior written consent of the other; except that Cape may assign these Terms without consent of Customer in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or shares. These Terms shall inure to the benefit of and shall be binding on the successors and assignees of the parties.
13.2. Governing Law and Venue
These Terms will be governed by and construed in accordance with the laws of the applicable jurisdiction set out in Section 12 without giving effect to principles of conflict of laws. Except for applications for injunctive relief by Cape, any action or proceeding arising from or relating to these Terms must be brought in a court with exclusive jurisdiction set out in Section 12, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
Any notice or other communication required or permitted under these Terms and intended to have legal effect must be given in writing to the other party at the address set forth above (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested) (c) sent by recognized air courier service.
13.4. Entire Agreement
These Terms is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.
13.5. Severability and Waiver
In the event that any provision of these Terms is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of these Terms will remain in full force and effect. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.6. Relationship of the Parties
The parties to these Terms are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by these Terms.
14. DEFINITIONS“Cape” (or “we” or “us”) is defined in Section 1.“Cape Technology” is defined in Section 6.1.“Change Order” is defined in Section 7.5.“Claim” is defined in Section 11.“Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under these Terms, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information includes the Customer Data, information derived from or concerning the Services and these Terms.“Customer” (or “you”) is defined in Section 1.“Customer Data” means any content, data, information or information contained in any file, database, or other document or media submitted by Customer through the Services or provided by Customer to Cape as part of the Services.“Customer Materials” is defined in Section 7.3.“Deliverables” means any tangible material arising out of the performance of the Professional Services or provision of the Services.“Documentation” means Cape’s technical documentation and usage guides for the applicable Services made available through the Services.“Effective Date” is defined in Section 1.“Fees” is defined in Section 3.“Initial Subscription Term” is defined in Section 8.1.“Licensed User” means the employees or contractors of Customer who are authorized to use the Services on your behalf. Licensed Users may also be further defined in the Order.“Losses” is defined in Section 11.“Order” is a written agreement between you and Cape permitting use of the Services or providing for the provision of Professional Services. An Order will specify, as applicable, the Customer, the permitted use of the Services, the applicable Fees, and any other provisions applicable to such an agreement that the parties specify in such document. An Order may be an online click-through agreement, a separate “Order Form,” or a “Statement of Work” specifying Professional Services.“Professional Services” is defined in Section 7.1.“Renewal” is defined in Section 8.1.“Services” means Cape’s software as a service offering, along with any other products or services that Cape may make available to you pursuant to these Terms and an applicable Order. The Services may include software for local installation as well.“Subscription Term” means the time period during which Customer is permitted to use the Services pursuant to these Terms. If the Subscription Term is not specified in the Order, then it will be 30 days only from the Effective Date.“Support Services” means technical support and maintenance services for the Services as may be specified in an Order.“Taxes” is defined in Section 3.“Term” is defined in Section 8.1.“Terms” is defined in Section 1.Cape Inc.
100-1505 Barrington Street
[end of terms]