Captyn

Terms of Service

THIS AGREEMENT GOVERNS YOUR USE OF THE CAPTYN WEB SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY USING THE CAPTYN WEB SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are Captyn’s direct competitor, except with Captyn’s prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on October 8, 2018. It is effective between You and Captyn as of the date of You accepting this Agreement.

1. DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Captyn” means Wyn.net, LLC, a Kentucky limited liability company and its Affiliates.

“Agreement” means this Terms of Service.

“Content” means information obtained from publicly available sources, third party content providers, Facilitators, or Service Providers, and made available through the Services and/or pursuant to an Order Form.

“Facilitator” means any person or entity who facilitates the provision of Services on behalf of a third-party, such as a teacher or instructor.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Non-Captyn Application” means a Web-based, mobile, offline or other software application functionality that is provided or used by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You.

“Order Form” means an ordering document, online order or internet transaction via the Captyn website or any Captyn web application, specifying the Services to be provided hereunder that is entered into between You a Service Provider, between You and a Facilitator, between You and a User, or between You and Captyn or any third-party service provider, all of which utilize Captyn’s website or web application to process orders for Services, including but not limited to any addenda and supplements thereto.

“Purchased Services” means Services that You or Your Affiliate purchase under an Order Form.

“Services” means any and all services that may be or are ordered by You under an Order Form, via interaction with the Captyn website or any Captyn web application.

“Service Provider” means any person or entity who is a party to an Order Form, and agrees to provide Services pursuant to same whether through a Facilitator or otherwise, such as a school, academy, or lesson provider.

“User” means any person or entity who purchases Services via an Order Form.

“You” or “Your” means the individual or legal entity who is accepting this Agreement, and Affiliates of any such entity utilizing or maintaining any right to Services facilitated through the Captyn website or web application(s), including but not limited to any Facilitators, Service Providers, and Users utilizing the Captyn website or web application(s).

“Your Data” means electronic data and information submitted by or for You to the Services, excluding Content and Non-Captyn Applications.

2. CAPTYN’S RESPONSIBILITIES

2.1. Purchasing Services. Captyn endeavors to (a) provide a portal through which You or Your customers may purchase or offer Services and any applicable Content associated with said Services, pursuant to this Agreement and the applicable Order Forms, (b) provide applicable Captyn standard support for transactions occurring via the Captyn website or Captyn web application, (c) use commercially reasonable efforts to make the Captyn website or Captyn web application available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond Captyn’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Captyn’s employees), Internet service provider failure or delay, Non-Captyn Application, denial of service attack.

2.2. Protection of Your Data. Captyn will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Captyn Privacy Policy, incorporated herein by reference. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Captyn’s personnel except (a) to make available the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.

2.3. Captyn’s Personnel. Captyn will be responsible for the performance of Captyn’s personnel (including Captyn’s employees and contractors) and their compliance with Captyn’s obligations under this Agreement, except as otherwise specified herein.

2.4. Purge of User Data. Captyn shall purge all data from any and all of Your accounts with Captyn within 6 months of termination of this Agreement or cancellation of Your account with Captyn.

3. USE OF SERVICES AND CONTENT

3.1 Services Provided via Third-Parties. Unless otherwise provided in the applicable Order Form, (a) Services and access to Content are offered and sold by the Service Provider which provided access to Captyn’s website or web application, not Captyn, (b) the provision of Services and access to Content shall be the responsibility of, and governed by, the terms of sale, terms of service, and/or privacy policies of the Service Provider which provided access to Captyn’s website or web application, and (c) Captyn will not be responsible for and in no way guarantees the use and/or enjoyment of the Services.

3.2 Usage Limits. Services and Content may be subject to usage limits, including, for example, any quantities specified in Order Forms.

3.3 Your Responsibilities. You will: (a) be responsible for your compliance with this Agreement and any applicable Order Forms, (b) be responsible for the accuracy, quality and legality of the information provided by You in any Order Forms as well as Your Data and the means by which You acquired Your Data, and (c) comply with terms of service and privacy policies of any Service Provider which provided access to Captyn’s website or web application for the purpose of purchasing Services via Order Forms. If you are a Facilitator, you are responsible for providing the Services pursuant to any applicable Order Form, under the terms and conditions specified by the Service Provider that You are affiliated with.

NON-CAPTYN PROVIDERS

4.1. No Warranty for Non-Captyn Applications. Captyn or third parties may make available third-party products or services, including, for example, Non-Captyn Applications. Any acquisition by You of such products or services, and any exchange of data between You and any Non-Captyn provider, product or service is solely between You and the applicable Non-Captyn provider. Captyn does not warrant or support Non-Captyn Applications or other Non-Captyn products or services.

4.2. Non-Captyn Applications and Your Data. If You choose to use or associate a Non-Captyn Application with a Service, You grant Captyn permission to allow the Non-Captyn Application and its provider to access Your Data as required for the interoperation of that Non-Captyn Application with the Service. Captyn is not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-Captyn Application or its provider.

4.3. Integration with Non-Captyn Applications. The Services may contain features designed to interoperate with Non-Captyn Applications. To use such features, You may be required to obtain access to such Non-Captyn Applications from their providers, and may be required to grant Captyn access to Your account(s) on such Non-Captyn Applications. Captyn cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Captyn Application ceases to make the Non-Captyn Application available for interoperation with the corresponding Service features in a manner acceptable to Captyn.

5. FEES AND PAYMENT FOR PURCHASED SERVICES

5.1. Fees. If you are a User, You will pay all fees specified in Order Forms authorized by You. Except as otherwise specified herein or in an Order Form,(i) fees are based on Services and Content purchased and not actual usage, and (ii) payment obligations are non-cancelable and fees paid are non-refundable.

5.2. Invoicing and Payment. Users will provide Captyn with valid and updated credit card information, and Service Providers will provide Captyn with a valid invoice, or a valid purchase order or alternative document reasonably acceptable to Captyn, in connection with any Order Forms that you are a party to. If You provide credit card information to Captyn, You authorize Captyn to charge such credit card for all Purchased Services listed in the Order Form. If the Order Form specifies that payment will be by a method other than a credit card, for example, through a third-party payment service, You authorize Captyn to charge said alternative payment method. You are responsible for providing complete and accurate billing and contact information to Captyn and notifying Captyn of any changes to such information. If You provide Captyn with an invoice, purchase order, or alternative similar document, You authorize Captyn to transmit said document to the User that is a party to the related transaction.

5.3. Suspension of Service. If any amount owing by You under this or any other agreement pursuant to any Order Form is returned as unpaid, declined, or otherwise charged back, Captyn may, without limiting Captyn’s other rights and remedies, direct any third-party entity through which associated Services are to be provided to suspend such Services to You until such amounts are paid in full. If any Service owing by You under this or any other agreement pursuant to any Order Form is reported as un-provided or insufficiently provided, Captyn may, without limiting Captyn’s other rights and remedies, seek to recover any monies paid to you and suspend your access to the Captyn website or web application(s).

5.4. Future Functionality. You agree that Your purchases and provision of Services are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Captyn regarding future functionality or features.

6. PROPRIETARY RIGHTS AND LICENSES

6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Captyn and Captyn’s licensors and Content Providers reserve all of Captyn’s/their right, title and interest in and to all of Captyn’s/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

6.2. Access to and Use of Content. You have the right to access and use applicable Content subject to the terms of applicable Order Forms and this Agreement. If You are a Service Provider or Facilitator, You hereby grant Captyn a non-exclusive license to use your name, trademark, service mark, likeness, logo, or other identifying property to describe or promote any Service offered or facilitated by You through the Captyn website or web application(s). If You are a Service Provider or Facilitator, You hereby grant Captyn a non-exclusive license to use, display, reproduce, distribute or create any derivatives of Content provided by you to Captyn for the purpose of facilitating or promoting Services.

6.3. License to Use Feedback. You grant to Captyn and Captyn’s Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Captyn’s and/or Captyn’s Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Captyn’s or Captyn’s Affiliates’ services.

7. CONFIDENTIALITY

7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Captyn’s Confidential Information includes, but is not limited to, any software code, executable code, databases, or other proprietary information regarding Captyn’s website or web applications; and Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

7.2. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.

7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

7.4 Medical Data. Any information submitted to Captyn by You or on Your behalf, including medical or health information, is submitted freely and with your knowledge and authorization. Any such disclosures of medical or health information are not subject to or bound by Doctor Patient confidentiality, or statutory requirements of the Health Insurance Portability and Accountability Act. You hereby authorize Captyn or its affiliates and partners to use and disclose any protected health information provided by You for the purpose of providing access to Services, consultation, or for any purpose described in an Order Form. You understand that you have a right to revoke this authorization, in writing, at any time. The revocation will not be effective to the extent that any person or entity has already acted in reliance on Your authorization or if Your authorization was obtained as a condition of obtaining a Service. You understand that any information used or disclosed pursuant to this authorization may be no longer be protected by federal or state law.

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

8.2. Captyn’s Warranties. Captyn warrants that (a) this Agreement, the Captyn Privacy Policy, and any applicable Order Forms will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data and (b) Captyn will not materially decrease the overall security of its website or web application. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.

8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

9. MUTUAL INDEMNIFICATION

9.1. Indemnification by Captyn. Captyn will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that use of Captyn’s website or web application (exclusive of any Content, Data or other information provided by You) infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Captyn in writing of, a Claim Against You, provided You (a) promptly give Captyn written notice of the Claim Against You, (b) give Captyn sole control of the defense and settlement of the Claim Against You (except that Captyn may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Captyn all reasonable assistance, at Captyn’s expense. If Captyn receives information about an infringement or misappropriation claim related to a Service, Captyn may in Captyn’s discretion (i) modify the Captyn website or web application so that they are no longer claimed to infringe or misappropriate, without breaching Captyn’s warranties under “Captyn Warranties” above. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-Captyn Application or Your use of the Captyn website or web application in violation of this Agreement or applicable Order Forms.

9.2. Indemnification by You. You will defend Captyn against any claim, demand, suit or proceeding made or brought against Captyn by a third party alleging that any of Your Content, Data, other information, or Services infringe or misappropriate such third party’s intellectual property rights, or arising from Your use or provision of the Services or Content in violation of the Agreement, the Documentation, Order Form or applicable law (each a “Claim Against Captyn”), and You will indemnify Captyn from any damages, attorney fees and costs finally awarded against Captyn as a result of any such Claim Against Captyn, or for any amounts paid by Captyn under a settlement approved by You in writing of, a Claim Against Captyn, provided Captyn (a) promptly give You written notice of the Claim Against Captyn, (b) give You sole control of the defense and settlement of the Claim Against Captyn (except that You may not settle any Claim Against Captyn unless it unconditionally releases Captyn of all liability), and (c) give You all reasonable assistance, at Your expense.

9.3. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.

10. LIMITATION OF LIABILITY

10.1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CAPTYN TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR OR IN CONNECTION WITH THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, DATA, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

11. TERM AND TERMINATION

11.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all Services described hereunder have expired or have been terminated.

11.2. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.3. Surviving Provisions. The sections titled “Fees and Payment for Purchased Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Customer Data Portability and Deletion,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.

12. NOTICES, GOVERNING LAW AND JURISDICTION

12.1 Notices. All notices and other communications hereunder must be in writing and will be deemed to have been duly given if delivered by hand, or on the next business day if delivered by a recognized overnight courier, or on the third business day if mailed (by certified or registered mail, return receipt requested, first class postage prepaid), or upon successful facsimile transmission to the parties. All notices shall be provided to the contact person designated by the parties, if any.

12.2 Governing Law. This Agreement shall be a contract under the laws of the Commonwealth of Kentucky and for all purposes shall be governed by and construed and enforced in accordance with the laws of such Commonwealth. Any and all disputes arising out of, or in connection with, this Agreement including, without limitation, any claim regarding its subject matter, formation, validity, termination or any breach hereof, whether based in contract, tort or otherwise shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Kentucky, excluding the Commonwealth’s choice of law principles.

12.3 Jurisdiction. Each of the parties consents and voluntarily submits to personal jurisdiction in the Commonwealth of Kentucky and in the courts in such Commonwealth located in Jefferson County and the United States District Court for the Western District of Kentucky in any proceeding dispute or claim arising out of or in connection herewith, including any dispute or claim regarding its subject matter, formation, validity, termination or breach thereof, whether sounding in contract, tort, or otherwise, and any such proceeding, dispute or claim shall be decided solely and exclusively by the state or federal courts located in Jefferson County, Kentucky and in no other. In the event of an alleged breach hereof, the prevailing party shall be entitled to reimbursement of all of its costs and expenses, including reasonable attorneys’ fees, incurred in connection with such breach, dispute, claim or litigation, including any appeal therefrom. For purposes of this Section, the determination of which party is to be considered the prevailing party shall be decided by the court of competent jurisdiction that resolves such dispute, claim or litigation.

12.4. No Agency. For the avoidance of doubt, Captyn is entering into this Agreement as principal and not as agent for any other company. Subject to any permitted Assignment under Section 13.3, the obligations owed by Captyn under this Agreement shall be owed to You solely by Captyn and the obligations owed by You under this Agreement shall be owed solely to Captyn.

13. GENERAL PROVISIONS

13.1. Export Compliance. The Services, Content, other technology made available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.

13.2 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Captyn regarding Your purchase of, use of or provision of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.

13.3. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.4. Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

13.5. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

13.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

13.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.