Terms of Service

Updated: 1/18/2024

RECITAL

The following terms and conditions govern your Account and use of services with Capably, LLC (hereinafter “Capably”, “we” or “our”) and the use of any third-party services provided through your Account with Capably (e.g., Thinkific Labs Inc., hereinafter “Thinkific”). By signing up for or using any of the services offered by Capably, by using Capably’s website, or by signing up for or using any third-party services or websites provided through your Account with Capably, you are agreeing to be bound by the following terms and conditions, together with Capably’s Privacy Policy, and, if applicable, any terms and conditions and privacy policies of any third-parties for which you receive services or access to accounts, all of which are incorporated herein by reference (collectively, the “Terms of Service”).

If you do not agree to all of the terms of the Terms of Service, you must not subscribe for or use the Services or create an Account with Capably. If the individual agreeing to these Terms of Service is doing so on behalf of a company or other legal entity, that individual represents that they have the authority to bind such company or other legal entity to the Terms of Service. If the individual agreeing to these Terms of Service is doing so as a parent or legal guardian on behalf of a minor or other subject, that individual acknowledges and accepts full responsibility for the actions and use of the Services by the subject.

New features or tools may be added to the Services. You acknowledge that such new features or tools will also be subject to the Terms of Service. Capably reserves the right to update and change the Terms of Service at any time by posting updates and changes to the Capably website, including posting an updated listing of any terms and conditions and/or privacy policies of any third-parties providing services as part of the Services. We recommend that you check the Terms of Service from time to time for any updates or changes that may impact you. If you continue to use the Services following any such update or change, you will be deemed to have accepted those updates or changes. If you do not agree to the updates or changes, you must stop using the Services and your Account.

Article 1 ACCOUNT TERMS

1.1 Majority. You must be at least the age of majority in the jurisdiction where you reside or from which you use the Services or have permission from a parent or legal guardian that has agreed to these Terms of Service on your behalf.

1.2 Registration Information. You must provide your full legal name, current address, a valid email address, and any other information needed in order to complete the signup process with Capably. You may also be required to provide this information to third-party service providers. You are responsible for ensuring that your registration information is true, accurate, and complete.

1.3 Communication. You acknowledge that Capably will use the email address you provide as the primary method of communication, and Capably may send email communications to you and your users to convey information about Capably’s products and/or services.

1.4 Security. You are responsible for keeping your password secure. Capably will not be liable for any loss or damage from your failure to maintain the security of your Account and password. You must notify Capably and any third-party service provider if you become aware of any unauthorized access to or use of your Account or password.

1.5 Responsibility. You are responsible for all activity within your Account, whether known or unknown, with or without your consent, and for all content, including videos, files, data, graphics, photos and links that are uploaded to your Account (“Content”)

1.6 Breach. Any breach or violation of any terms of the Terms of Service as determined in the sole discretion of Capably will result in an immediate termination of your Services, without notice to you.

Article 2 ACCOUNT ACTIVATION

2.1 Contracting Party. Subject to section 2.2, the person signing up for the Services will be the contracting party (“Account Owner”) for the purposes of these Terms of Service, and will be the person who is authorized to use any corresponding Account we may provide to the Account Owner in connection with the Services.

2.2 If you are signing up for the Services on behalf of your employer, your employer will be the Account Owner and you represent and warrant that you have the authority to bind your employer to these Terms of Service. If you are signing up for the Services on behalf of a minor or other subject, you will be the Account Owner and be responsible for the use by the subject of any corresponding Account we may provide in connection with the Services.

Article 3 GENERAL CONDITIONS OF USE

3.1 Technical Support. Technical support is only provided to the paying Account Owners.

3.2 Accountability. You are responsible for your activity and conduct in your Account. You must not, either directly or indirectly:

3.2.1 Use the Services for, or in connection with, any illegal or unauthorized purpose, or in a manner that: (a) infringes, violates or misappropriates any rights of any person, including intellectual property, confidentiality or privacy rights; (b) is harmful, fraudulent, deceptive, misleading, threatening, harassing, defamatory, offensive, biased, obscene, vulgar, indecent, menacing, tortious or otherwise objectionable as determined by Capably in its sole discretion; (c) attempts, in any manner, to obtain the password, account, or other security information from any other user; (d) violates the security of any computer network, or crack any passwords or security encryption codes; or (e) violates any laws, rules or regulations in your jurisdiction (including but not limited to copyright, data protection and privacy laws) as well as the laws of Canada;

3.2.2 reverse engineer, decompile, disassemble, decrypt or otherwise attempt to discover the code or underlying structure, ideas, know-how or algorithms relevant to the Services or access the Services, or write or develop any program based on the Services or any portion thereof, in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services;

3.2.3 circumvent or attempt to circumvent any limitations imposed on your account including any license, timing or use restrictions that are built into the Services;

3.2.4 lend, sell, resell, lease, sublicense, transfer, assign, distribute, grant a security interest in, or otherwise use the Services for the benefit of a third party, unless we have given you prior written authorization;

3.2.5 modify, translate, or create derivative works based on the Services or any software, hardware, documentation or data related to the Services, in whole or part, or reproduce, duplicate, copy, or exploit any portion of the Services in whole or in part except to the extent expressly permitted in writing by Capably or authorized within the Services;

3.2.6 upload, transmit, disseminate or use the Services to send or store malicious code, including any worms, viruses, Trojan horses, or any other software or code of a destructive nature;

3.2.7 use the Services to collect or store any sensitive information (“Sensitive Information”) including, but not limited to personal health information, banking and credit card information, and if you do use the Service to collect, store or otherwise process any Sensitive Information you do so at your own risk and you are responsible for ensuring compliance with all applicable laws;

3.2.8 permit the Services to be used by anyone other than the Account Owner;

3.2.9 use the bandwidth and storage resources provided by Capably in an unreasonable and disproportionate manner based on your subscription plan tier. We monitor usage to ensure fair distribution of resources among all Capably customers. In the event that your bandwidth or storage usage exceeds what is reasonable and proportionate to your subscription plan, we reserve the right to take appropriate measures, including but not limited to implementing bandwidth throttling, imposing storage limits, suspending or terminating your access to the services, in whole or in part, without liability;

3.2.10 without our consent, use the Services to advertise, promote or market for any third party’s interests or benefit, other than for the proper use of the Services;

3.2.11 circumvent or otherwise interfere with any authentication or security measures of the Services, or otherwise interfere with or disrupt the integrity or performance of the Services, including doing anything to, or using the Services in a way that may, cause the Services to be interrupted, damaged, rendered less efficient or such that the effectiveness or functionality of the Services is in any way impaired, including overloading, flooding, spamming, mailbombing or crashing;

3.2.12 use any robot, spider, device, technology or process to monitor or copy any data or pages within the Services without our prior written consent; and

3.2.13 purchase search engine or other pay per click keywords (such as Google AdWords), or domain names that use Capably or Capably trademarks and/or variations and misspellings thereof, or alter or remove any trademarks or proprietary notices contained in or on the Services without our consent.

3.3 Sale to Minors. We do not knowingly provide services or sell products to children. If you are below the age of 16, you may use our website or the Services only with the permission and active involvement of a parent or legal guardian. If you are a parent or a legal guardian that has agreed to these Terms of Service on behalf of a minor, you are responsible for any and all uses of our website or the Services by the minor. If you are a minor, do not provide us or other website visitors with any personal information about yourself, and do not use the services unless you have procured the permission and active involvement of a parent or legal guardian. If we learn we have collected or received personal information from a child under 16 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a minor, please contact us at info@gocapably.org, or send us mail to the address listed below.

Article 4 Capably’s Rights

4.1 Termination & Refusal of Service. We reserve the right to modify or terminate the Services for any reason, without notice at any time. We reserve the right to refuse our Services to anyone for any reason at any time. Capably may, but has no obligation to, suspend an Account Owner’s access to the Services, or terminate the Services (without prior notice) for any breach of these Terms of Service.

4.2 Content Control. Capably may not pre-screen Content and it is in our sole discretion to refuse or remove any Content that is available via the Services. Capably may, but has no obligation to, remove Content that violates any terms of these Terms of Service (including, without limitation, under Section 3.2 above).

4.3 Threats to Capably. Verbal or written abuse of any kind (including threats of abuse or retribution) by an Account Owner or its representatives directed at any Capably customer, Capably employee, member, or officer will result in immediate termination of the Services.

4.4 No Exclusivity. We reserve the right to provide our Services to your competitors and make no promise of exclusivity in any particular market segment. You further acknowledge and agree that Capably employees and contractors may also be Capably customers/instructors and that they may compete with you, although they may not use your confidential information in doing so.

4.5 Account Disputes. In the event of a dispute regarding Account ownership, we reserve the right to request documentation to determine or confirm Account ownership. Documentation may include, but is not limited to, a scanned copy of your business license, government issued photo ID, the last four digits of the credit card on file, etc. Capably retains the right to determine, in our sole judgment, rightful account ownership and transfer an account to the rightful owner. If we are unable to reasonably determine the rightful Account Owner, Capably reserves the right to temporarily disable an account until resolution has been determined between the disputing parties.

Article 5 LIMITATION OF LIABILITY

5.1 No Entitlement to Damages. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT CAPABLY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, PROFITS, REVENUES, OPPORTUNITIES, ANTICIPATED SAVINGS, GOODWILL, USE, DATA OR OTHER INTANGIBLE OR ECONOMIC LOSSES OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF SUCH DAMAGES ARE REASONABLY FORESEEABLE OR YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

5.2 Indemnification of Capably. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD CAPABLY AND (AS APPLICABLE) OUR PARENT, SUBSIDIARIES, AFFILIATES, LICENSORS, SUPPLIERS, PARTNERS, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY THIRD PARTY CLAIMS, LOSSES, DAMAGES, PENALTIES, LIABILITY, AND COSTS, INCLUDING REASONABLE LEGAL FEES, OF ANY KIND OR NATURE THAT ARE INCURRED IN CONNECTION WITH OR ARISING OUT OF YOUR USE OF THE SERVICES OR ANY OF YOUR CONTENT, YOUR BREACH OF THESE TERMS OF SERVICE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.

5.3 No Warranties. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CAPABLY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, CONDITIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. FOR GREATER CERTAINTY, NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CAPABLY OR ELSEWHERE, WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.

5.4 Liability for AI. AI SYSTEMS ARE NOT FLAWLESS AND ARE KNOWN TO GENERATE INACCURATE RESULTS, MAY INFRINGE OR MISAPPROPRIATE INTELLECTUAL PROPERTY RIGHTS, MAY DISCLOSE CONFIDENTIAL INFORMATION, MAY COMMIT PLAGIARISM, OR MAY CREATE OUTPUTS, OR RELY UPON INPUTS, THAT ARE CONTRARY TO LAW OR THAT ARE OTHERWISE UNDESIRABLE. YOU SHOULD NOT INPUT OR USE ANY DATA OR OTHER INFORMATION THAT YOU WISH TO PROTECT, ARE REQUIRED TO PROTECT, OR THAT SHOULD NOT BE DISCLOSED OR MISUSED, WHETHER FOR PRIVACY, CONFIDENTIALITY OR OTHER REASONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CAPABLY CANNOT AND SHALL NOT BE HELD LIABLE TO YOU OR ANY THIRD PARTY, FOR ANY FORM OF DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES DESCRIBED IN SECTION 5.1 OR DAMAGES IN RESPECT OF ANY PERSON, PROPERTY OR OTHERWISE, ARISING FROM OR RELATED TO ANY PROVISION OF AI OR RESULTS THEREFROM, YOUR DIRECT OR INDIRECT USE OF AI OR FROM YOUR DIRECT OR INDIRECT USE OF THE SERVICES THAT INCORPORATE OR RELY UPON AI. THIS DISCLAIMER OF LIABILITY INCLUDES, BUT IS NOT LIMITED TO ANY LIABILITY FOR INACCURATE RESULTS, UNINTENDED OR UNFORESEEABLE CONSEQUENCES, OR ACTIONS OR DECISIONS TAKEN BY YOU OR OTHERS IN RELIANCE UPON SUCH RESULTS.

5.5 No Warranty by Capably. Without limiting Sections 5.3 and 5.4 above, Capably does not warrant that: (a) the Services will be uninterrupted, timely, secure, error-free or free of harmful components; (b) the results that may be obtained from the use of the Services will be accurate or reliable or meet your needs; (c) the quality of any products, Services, information, or other material purchased or obtained by you through the Services will meet your expectations or business requirements, or that any errors in the Services will be corrected; (d) any Content will be secure or not otherwise lost or damaged; or (e) any third party products or services included in or made available through the Services will be available or continue to be available or will meet your expectations or business requirements.

5.6 Limitations on Liability. IN NO EVENT WILL CAPABLY’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE, WHETHER BY STATUTE, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF: (A) THE FEES PAID BY YOU FOR THE CAPABLY SERVICES HEREUNDER DURING THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE, OR (B) USD$100. THE LIMITATIONS SET FORTH IN THIS SECTION 5 WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

Article 6 INTELLECTUAL PROPERTY AND CONTENT

6.1 Content Review. You acknowledge that, in order to ensure compliance with legal obligations, we may review certain content and data transmission to determine whether it is illegal or whether it violates these Terms of Service. We may also prevent access to, refuse to display, or remove content, or block data transmissions that we reasonably believe in our sole discretion violates the law or these Terms of Service. Notwithstanding the foregoing, Capably has no obligation to monitor or review any content submitted to the Services by you or any other person, and you remain solely responsible for your content and data transmissions. Further, the presence of illegal materials or materials that violate these terms of service may result in the suspension or termination of your account.

6.2 Feedback. If you choose to provide feedback including any ideas, suggestions, concepts, processes, techniques, questions, answers, codes/scripts, and other comments related to our services, site, proposed services, documentation or business (“Feedback”), Capably will own and may use such Feedback without any restrictions and without obligations to you, and you hereby waive any claim you have to ownership, compensation, whether monetary or otherwise.

6.3 Permitted Use after Termination. If you remove materials, delete your Account or if these Terms of Service are terminated, we will be permitted to use and retain a copy, including archives, of your materials, Confidential Information or any information that is related to your Account (including materials and personal information) for business purposes related to these Terms of Service and to the extent necessary to meet our legal and compliance obligations (including audit and anti-fraud purposes).

6.4 Retention by Capably. Capably will own and retain all right, title and interest in: (a) all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions and other tangible and intangible information relating to the Services, except for third-party services, any related services provided by Capably and associated deliverables, and all improvements, enhancements or modifications thereto; (b) any anonymized usage data (including metadata) arising or derived from or based on the provision, use and performance of various aspects of the Services (other than your Content as provided), provided that such data does not identify you or any individual; and (c) all intellectual property rights related to any of the foregoing. No rights or licenses are granted by Capably and all such rights are expressly reserved to Capably.

Article 7 PAYMENT OF FEES AND TAXES

7.1 Payment Type. A valid credit card is required for Accounts able to process orders using a live payment gateway.

7.2 Billing. Services will be billed monthly. When your billing period is over, the Account Owner will be sent an invoice via the email provided.

7.3 Taxes. All fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and Services, harmonized or other taxes, fees, duties or charges now in force or enacted in the future (“Taxes”). All payments made by you to Capably must be made free and clear of any deduction, set-off or withholding, as may be required by law. If any deduction or withholding (including but not limited to domestic or cross-border withholding taxes) is required on any payment (“Regulatory Fees”), you will pay such Regulatory Fees as are necessary so that the net amount received by us is equal to the amount then due and payable under your Account or these Terms of Service. If any Regulatory Fees are deducted from the amount received by Capably, Capably will invoice you for the same.

If you are resident in the U.S., Taxes may apply to your subscription to or purchase of some or all of Capably’s products and Services. Any applicable Taxes are based on the rates applicable to the U.S billing address you provide to us, and will be calculated at the time of purchase of the applicable Taxable Offerings. Such amounts are in addition to fees for the Taxable Offerings and will be billed to the credit card you use to pay for the Taxable Offerings. If you are exempt from payment of such Taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such a certificate.

7.4 Refunds. Capably does not provide refunds.

Article 8 PAYMENTS

8.1 Payments Platform. Capably offers access, through a third party to a payments platform through which you may process payment transactions with your customers, students or other users (e.g., “Thinkific Payments”). Further, the third party payments platform may use a third party payments processor and platform provider to facilitate payments (the “Provider”). The terms of use and privacy policies of these third parties are hereby incorporated by reference, and you must read and accept these additional terms of service and privacy policies in order to use your Account.

Article 9 CANCELLATION AND TERMINATION

9.1 Cancellation. You may cancel your Account at any time by sending an email to info@gocapably.org, or by sending us mail to the address listed below, with the subject line ‘Cancel account’.

9.2 Content Removal. Once cancellation is confirmed, all of your materials or account information may be immediately deleted from the Services. Since deletion of all data is final, please be sure that you do in fact want to cancel your Account before doing so. If you cancel your Account, or otherwise request that your Content be deleted, Capably will not be held responsible for any data that is lost. As noted in Section 7, above, if you remove Content, we may retain a copy for our business purpose related to these Terms of Service and to the extent necessary to meet our legal and compliance obligations.

9.3 Termination. We reserve the right to modify or terminate the Services for any reason, without notice at any time.

9.4 Fraud. Without limiting any other remedies, Capably may prevent you from creating an Account or suspend or terminate any Account that you have created if we suspect that you have engaged in fraudulent activity in connection with the Services.

9.5 Survival. Any of your obligations set forth in these Terms of Service that are intended to survive termination will survive the termination of the Services.

Article 10 MODIFICATIONS

10.1 Services. Capably reserves the right in our sole discretion to modify or discontinue the Services, or any part thereof, with or without notice.

10.2 Prices. Capably reserves the right in our sole discretion to modify prices with or without notice.

10.3 No Liability. Capably will not be liable to you for any modification, price change, suspension, discontinuance or termination of the Services.

Article 11 OPTIONAL FEATURES

11.1 Third Party Tools. Capably may provide you with access to, and you may choose to use, third party tools as part of the Services, over which Capably neither monitors nor has any control or input. You acknowledge and agree that Capably provides access to such tools ‘as is’ without any warranties, representations or conditions of any kind and without any endorsement. You further acknowledge and agree that: (a) Capably is not a party to any terms or agreements that may be entered into between you and the providers of such tools; (b) Capably does not guarantee and is not responsible for the availability of, content provided on, or functionality of, third party tools, and Capably does not represent, warrant or guarantee that third party tools will be adequate for your needs; and (c) you are responsible for your own dealings with the providers of third party tools. Capably will have no liability whatsoever to you or any other person arising from or relating to your use of optional third party tools. Any use by you of third party tools and/or services is entirely at your own risk and discretion and you should ensure that you are familiar with and approve the terms on which tools are provided by the relevant third party provider(s). Capably strongly recommends that you seek specialist advice before using or relying on certain tools. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice when assessing the correct tax rates you should charge end users.

11.2 White Label Apps. Capably is not a party to any terms or agreements that may be entered into between you and your chosen app store vendor (“ASV”) such as Apple and/or Google, and you are solely responsible for your own dealings with your chosen ASV, and for compliance with such terms or agreements. Your decision to make available your White Label App through an ASV is at your own risk and discretion. Neither Capably nor any third party providing third party tools will refund fees in the event that you are unable to make available or use, or continue to make available or use, your White Label App through your ASV. Even if Capably supports you in resolving disputes with your chosen ASV, you are solely responsible for all content, technical support and customer service issues relating to your White Label App, including, but not limited to, in-app purchases, fulfillment, cancellation by you, your authorized users, returns, refunds, adjustments, rebates, functionality, warranty and feedback, reviews, or ratings. When providing technical support and customer services to your users in connection with your White Label App, you must always present yourself as a separate entity from Capably and not as an agent or representative of Capably. As between you and Capably, you are solely responsible for all technical support and customer service issues relating to your White Label App.

11.3 Experts. Capably and third parties providing Services under these Terms of Service may provide professionals to help you build your site for making available your Content and materials (“Experts”). Capably does not endorse Experts and takes no responsibility for any work performed by Experts or failure to fulfill a work order. Links to websites of Experts, announcements about Services or offers, and responses to email inquiries regarding Experts, are provided solely for informational purposes at the discretion of Capably and will not be construed or imply permission, or an affiliation, position regarding any issue in controversy, authentication, appraisal, sponsorship, nor a recommendation or endorsement of any website, product, Services, activity, business, organization, or person, and any offers, products, Services, statements, opinions, content or information on any linked third-party website. You acknowledge and agree that: (a) Capably is not a party to any terms or agreements that may be entered into between you and Experts; (b) Capably does not guarantee and is not responsible for the availability of services provided by Experts, (c) Capably does not represent, warrant or guarantee that the services of Experts will be adequate for your needs; and (d) you are responsible for your own dealings with Experts. Capably will have no liability whatsoever to you or any other person arising from or relating to your use of Experts. Any use by you of Experts is entirely at your own risk and discretion and you should ensure that you are familiar with and approve the terms on which services will be provided by Experts.

Article 12 PERSONAL DATA

12.1 Use. We will process Personal Data in accordance with: (a) these Terms of Service; (b) our Privacy Policy, and (c) to the extent that Personal Data are subject to Data Protection Regulations as required by law, with notice to you before carrying out the processing unless prohibited by law. The Privacy Policy will form part of these Terms of Service and may be amended in accordance with their terms. Capably will not sell Personal Data and will use Personal Data only for the limited purpose of providing the Services under these Terms of Service. You hereby instruct Capably to process Personal Data in connection with rendering the Services provided for in these Terms of Service.

12.2 Notice. We will notify you and you will notify Capably of the individual designated to respond to inquiries regarding Personal Data, and you and Capably will respond promptly to such inquiries. Capably will notify you if we determine that we can no longer comply with obligations under the CPRA with respect to Personal Data received or obtained in connection with performing the Services under these Terms of Service. Upon receipt of such notice, you may take reasonabe steps to stop and remediate any unauthorized use of Personal Data received or obtained in connection with performing the Services under these Terms of Service. Capably will notify you if we become aware of any Personal Data security incident.

12.3 Protection. Capably will implement appropriate technical and organizational measures to secure and protect against accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of, or access to Personal Data. Capably will take reasonable steps to ensure that only authorized personnel have access to Personal Data and that personnel with access will respect and maintain confidentiality of the same except and necessary to render the Services under these Terms of Service.

12.4 Transfer. Capably may make restricted transfer of Personal Data only with appropriate safeguards in accordance with data protection laws and only as (a) directed by you, or (b) as required by law, with notice to you before carrying out the processing unless prohibited by law.

12.5 Sub-processors. You hereby agree and provide a general prior authorization Capably and certain third parties who render services on behalf of Capably may engage in sub-processors. Any sub-processor will provide services only on the basis of a written agreement that specifies the processing activities of the sub-processor as well as the protections provided for Personal Data. By creating and accessing your Account with Capably, you agree to Capably’s use of Sub-processors. To the extent that you object to the use of a sub-processor in writing, you may terminate the relevant portion(s) of the Services.

12.6 Audit. You are, at your expense, entitled to audit Capably’s compliance with Data Protection Laws and data compliance under these Terms of Service. You are limited to one audit per year at any time during normal business hours. Capably will promptly provide you with access, assistance and information that is reasonably necessary to enable the audit, including access to its premises and data processing systems, subject to any reasonable confidentiality and security measures. You are entitled to have the audit carried out by a reputable third party qualified to carry out such an audit.

12.7 Completion. Upon completion of Services, Capably will return or delete all your Personal Data except to the extent provided for in these Terms of Service or as required by law.

Article 13 COMPLIANCE WITH TRADEMARK AND COPYRIGHT LAW

13.1 Compliance with Law. Capably will comply with federal copyright and trademark law, including requirements of the Lanham Act and the Digital Millennium Copyright Act (DMCA), including, but not limited to, (a) blocking access to or removing Content that it believes in good faith to be copyrighted material, or which contains the unauthorized use of trademarks, that has been illegally copied and distributed by any of its affiliates, content providers, or users; and (b) remove and discontinue Services to repeat offenders.

13.2 Reporting. If you believe that Content residing on or accessible through the Capably web site or Services infringes a copyright or trademark, please send a notice of infringement containing the following information to the Designated Agent listed below: (a) identification of the works or materials being infringed, (b) identification of the content that is claimed to be infringing and sufficient detail as to where it can be found, (c) contact information of the notifier, including name, address, telephone number, and email address, (d) evidence that the works or materials are protected by registered copyright and/or trademark, (e) a statement that the notifier has a good faith belief that the Content is not authorized by the copyright owner, its agent, or the law, (f) a statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright or trademark owner, and (g) a physical or electronic signature of a person authorized to make the complaint on behalf of the copyright or trademark owner.

13.3 Removal. It is Capably’s policy to notify the content provider or user that an infringement notification has been received and that the Content will be removed at the end of 24 hours unless a counter-notice is supplied to Capably. If no counter-notice is supplied, the infringing content will be removed from the system. The counter-notice must include: (a) identification of the content that is claimed to be infringing, (b) contact information of the content provider, including name, address, telephone number, and email address, (c) evidence that the works or materials are protected by registered copyright and/or trademark, (d) a statement that the notifier has a good faith belief that the Content is not authorized by the copyright owner, its agent, or the law, and (e) a statement made under penalty of perjury that the information provided is accurate and the content provider consents to the jurisdiction of the Federal Court for the judicial district in which the content provider lives and that the content provider will accept service of process from the notifier under section 13.2. If a counter-notice is received by Capably, Capably will evaluate all evidence submitted by the notifier and the content provider to discern legal rights held by either party and may determine whether to remove Content or material.

13.4 Designated Agent. info@gocapably.org

Article 14 MISCELLANEOUS TERMS

14.1 Entire Agreement. These Terms of Service constitute the entire agreement between you and Capably and govern your use of the Services, superseding any prior agreements between you and Capably, whether written or oral (including, but not limited to, any prior versions of these Terms of Service).

14.2 Notice. Communications required under these Terms and Conditions, unless otherwise designated, shall be made in writing to:

Email: info@gocapably.org
Address: 4539 E. Muriel Dr., Phoenix, AZ 85032

14.3 Waiver. The failure of Capably to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision.

14.4 Binding Nature. These Terms of Service will be binding on and enure to the benefit of the parties and their heirs and successors.

14.5 Third Party Beneficiaries. There are no third party beneficiaries to these Terms of Service, and you acknowledge that Capably will have no obligation or liability whatsoever to any third parties with which you may do business, including your customers or students.

14.6 Severability. If any provision of these Terms of Service is held void, invalid, illegal or unenforceable by a court of competent jurisdiction, such invalidity, illegality or unenforceability will not affect the validity, legality or enforceability of any other provisions contained in these terms or the validity or enforceability of that provision or part thereof in any other jurisdiction, and the remaining portions of these terms will continue in full force and effect.

14.7 Governing Law. These Terms of Service are governed by and construed in accordance with the laws of the State of Arizona and the federal laws of the United States, without giving effect to conflict of law principles. You irrevocably agree to the exclusive jurisdiction of the courts of the State of Arizona.

14.8 Availability. Capably makes no representation or warranty that the Services are appropriate or available for use in any specific state, country, or jurisdiction. Capably makes no representation or warranty that the Services are available for use with regard to any specific topic or application.

14.9 Headings. Section and paragraph headings contained in these Terms of Service are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.