Captivate Create NSP

Terms of service

IMPORTANT: BY SUBMITTING A CAPTIVATE CREATE TENANT MESSAGING ORDER TO CAPTIVATE, LLC (DBA “CAPTIVATE” AND “CAPTIVATE NETWORK”), CLIENT AGREES TO BE BOUND BY THE FOLLOWING STANDARD TERMS AND CONDITIONS.

1. ENTIRE AGREEMENT; MODIFICATION
Client’s use of the Captivate Create portal to create, schedule, and pay for tenant-to-tenant messaging within the Captivate Network (collectively referred to as “Messaging” herein) and these Standard Terms and Conditions (collectively, this "Contract”) represents the entire agreement between Captivate and Client and supersedes all prior negotiations, representations or agreements, either written or oral related thereto. No change or modification of this Contract, or waiver of any of its provisions, shall be effective.

2. SCHEDULING, AD-BLOCKING AND OTHER DISPLAY ADJUSTMENTS
Positioning and scheduling of Messaging is at the sole discretion of Captivate. The owners of the building(s) in which Client’s Messaging is to air may have the right to block certain messaging from airing (even if the messaging has begun airing) in such building(s). Refunds for creatives that are not approved will be refunded in the form of a check sent via mail. User will be contacted for mailing address by Captivate. Utility disruptions, technological or other problems may also impede Captivate’s ability to display Client’s Messaging in certain building(s). Finally, Captivate may be selling messaging inventory in anticipation of a building or buildings being activated with the Captivate Network. In the event Captivate is unable to display Client’s Messaging, regardless of reason, Captivate is not obligated to reschedule, provide make-good, or otherwise fulfill the Client’s Messaging order, nor is Captivate obligated to remit any full or partial refund or credit owed to the Client. Any make-good on Captivate’s part is a gesture of good faith.
All right, title and interest in any Captivate Create graphics and/or templates utilized by Client in creating Messaging shall be held solely by Captivate (excluding any copyrighted material used by Client within Messaging templates).

3. CLIENT’S REPRESENTATIONS OR WARRANTIES
Client represents and warrants that: (i) the person executing this Contract and/or submitting the Messaging on behalf of the Client is authorized to bind the Client to this Contract, (ii) it has the right to permit Captivate to display on its behalf the entire contents and subject matter contained in the Messaging template(s) including, without limitation, the names or pictures of any persons, any copyrighted material, trademarks, service marks or logos, and (iii) the use, transmission or display by Captivate of the Messaging on its behalf will not violate any laws or regulations or rights of any third parties.
Client agrees to indemnify, defend and hold (collectively ‘indemnify’ or ‘indemnification’) Captivate, its Affiliates and its respective directors, officers, employees and agents harmless from and against any and all liability, loss, damages, claims or causes of action, including all legal fees and expenses, without limitation, arising out of or related to (i) a claimed or actual breach of this Contract and (ii) any and all direct or third-party claims, with or without merit, that allege libel, slander, emotional distress, illegal competition or trade practices, infringement of trademarks, trade names or service marks, violation of rights of privacy or publicity or infringement of copyrights or other proprietary rights or violation of any other laws or regulations related to the Messaging provided by Client or the airing thereof by Captivate.
Client has the duty to defend at its expense or settle any and all third-party claims against Captivate or its Affiliates, including, without limitation, aforementioned allegations of libel, slander, emotional distress, or copyright infringement. Client will pay any and all claim defense costs, Client–negotiated settlement amounts, and damages finally awarded by a court. Each party’s indemnification obligations under this section are conditioned upon the indemnified party (i) promptly notifying the indemnifying party of any claim in writing and (ii) cooperating with the indemnifying party in the defense of the claim. This paragraph 3 shall survive the expiration this Contract.

4. LIMITATION OF CAPTIVATE LIABILITY
Captivate’s liability to the Client in regards to this Contract, shall in the aggregate in no event exceed the amount paid by Client to Captivate under this Contract. Without limiting the foregoing, in no event shall Captivate be liable under this contract for any special, indirect, incidental, or consequential damages, without limitation, including, lost income or profits, in any way arising out of or related to this contract, even if Captivate has been advised as to the possibility of such damages, nor shall Captivate be liable to Client for the loss of or damage to any materials, programs, or announcements provided to Captivate.

5. TERMINATION
This Contract is deemed irrevocable and nonrefundable from the time Client agrees to Captivate Create Standard Terms and Conditions by submitting Messaging order through the Captivate Create portal. Captivate has no obligation to provide delivery statistics regarding the Messaging order’s “flight” or “run” to the Client.
6. NO REPRESENTATIONS OR WARRANTIES
This Contract is not exclusive as to the business, products or services of Client. Captivate retains the complete and unqualified right to solicit the business of and advertisements/messaging from persons and entities that are in competition with the business, products or services of Client. Captivate makes no warranty, express or implied, with respect to any matter, including without limitation advertising and other services, and expressly disclaims the warranties or conditions of non-infringement, merchantability and fitness for any particular purpose. Without limiting the foregoing, Captivate also makes no representations, expressed or implied, with respect to usage statistics for any messaging or advertisement. Client acknowledges that delivery statistics provided by Captivate (if any are provided) shall constitute the official, definitive measurements of Captivate’s performance. No other measurements or usage statistics (including those of Client or a third party) shall be accepted by Captivate or have bearing on this Contract.

7. VENUE, CHOICE OF LAW AND JURY WAIVER
This Contract shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, including all matters of construction, validity, performance and enforcement. The parties agree that Suffolk County, in the Commonwealth of Massachusetts, shall be the sole forum for any action brought against the other party. The parties waive trial by jury in any action, proceeding or counterclaim brought in respect of any matter whatsoever arising out of or in any way connected with this Contract.

8. CONFIDENTIALITY AND NO ASSIGNMENT
Client shall not disclose the economic terms of this Contract other than (i) to those affiliates and third parties that have a need to know, such as Client’ s accountants, lenders and investors, and further provided that each such party agrees to keep such information confidential or (ii) as required by law. Client shall not assign or otherwise transfer, in whole or in part, its rights or obligations under this Contract.
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