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Terms of Service

Last updated: August 1, 2022

THESE CAPTURENOW TERMS OF SERVICE, including the Order(s), any applicable Service Attachments, Terms of Use, and Privacy Policy, which by this reference are incorporated herein (“Agreement”), are a binding agreement between CaptureNow, a Georgia corporation, with its primary office at 1874 Defoor Avenue Northwest, Atlanta, Georgia 30318, (“CaptureNow”), and the individual or legal entity identified in the Order (“Customer” or “you”). CaptureNow and Customer may be individually referred to as a “Party” or collectively as the “Parties.”

CaptureNow provides services and software intended solely for business use, pursuant to the terms and conditions set forth in this Agreement and on the condition that customer accepts and complies with this Agreement. By electronically signing this Agreement, Customer (a) accepts this agreement and agrees that Customer is legally bound by its terms; and (b) represents and warrants that: (i) its representative is 18 years of age or of legal age to enter into a binding agreement; and (ii) has the right, power, and authority to enter into this agreement on behalf of the corporation, governmental organization, or other legal entity, and to bind such organization to these terms. If Customer does not agree to the terms of this agreement, neither Customer nor its End Users may download, install, or use the services or software.

The Parties agree as follows:

  1. DEFINITIONS
    1. Capitalized terms not defined have the meaning given to them in Attachment A.
  2. ORDERING AND TERM
    1. Ordering Services
      1. Customer may order Services by submitting electronically an Order in the format provided by CaptureNow on the CaptureNow website or, for subsequent orders, via the Administrative Portal. The Order will identify the Services requested by Customer together with: (i) the price for each Service; (ii) scheduled Start Date; (iii) and products leased, licensed or sold to Customer, if any.
      2. An Order will become binding when it is placed by the Customer and accepted by CaptureNow. CaptureNow may accept an Order by commencing performance of the requested Services. The Services will begin on the Start Date, as identified in the applicable Order. Customer may purchase additional Services and software through Orders via the Administrative Portal.
    2. Services
      1. The following are the Services provided by CaptureNow (not all Services are available in all locations) and the descriptions are incorporated into and form a part of this Agreement:
        1. CaptureNow Service Attachment described at www.capturenow.com/service-attachment
        2. Any additional services ordered by Customer as evidenced by an Order.
    3. Term of this Agreement
      1. The Term of this Agreement will commence on the Effective Date and continue until the last Order Form, including any renewal periods, is terminated or expires, unless terminated earlier in accordance with its terms.
    4. Services Term and Automatic Renewal
      1. The Services’ term will begin on the Start Date of the initial Order and continue for the initial term set forth in the initial Order (“Initial Term”). Upon expiration of the Initial Term, recurring Services will automatically renew for successive periods of the same length as the Initial Term (each a “Renewal Term”) unless either Party gives notice of non-renewal at least thirty (30) days before the expiration of the Initial Term or the then-current Renewal Term. The term of any recurring Services added to the Account after the initial Order is submitted will start on the Start Date of the subsequent Order, will run continuously with the then-current term of any pre-existing Services, and will be billed on the same billing cycles as the pre-existing Services.
  3. INVOICING AND PAYMENT
    1. Prices and Charges
      1. All prices are identified in US dollars on the website (www.capturenow.com) or Administrative Portal. Additional charges may result if Customer activates additional features, exceeds usage thresholds, or purchases additional Services or equipment. Customer will be liable for all charges resulting from use of the Services on its Account.
      2. Recurring charges for the Services begin on the Start Date and will continue for the Term. Recurring charges will, once incurred, remain in effect for the Initial Term (as described in an Order Form) or the then-current Renewal Term. CaptureNow will provide notice of any proposed increase in such charges no later than thirty (30) days before the end of the Initial Term or then-current Renewal Term, and any such increase will be effective on the first day of the next Renewal Term. Administrative Fees that CaptureNow is entitled to pass on to its customers as a surcharge pursuant to applicable Law may be increased on thirty (30) days’ written notice.
      3. Usage rates, if any, will be applied based on the rate in effect at the time of use and shall be reflected in your invoice.  
    2. Billing and Payment
      1. All Services and software must be purchased via valid credit card at the time of purchase. By providing a valid credit card, Customer is expressly authorizing all Services and equipment charges and fees to be charged to such payment card, including recurring payments billed on a monthly or annual basis. In addition, Customer’s supplied credit card shall be used for any in-month purchases of additional services and products, or where Customer has exceeded usage or threshold limits, or any overage charges. Recurring charges are billed in advance in the frequency set forth in the Order Form, and any session overage or usage-based charges are billed monthly in arrears, if necessary. Credit card payments are subject to the approval of the card issuer, and CaptureNow will not be liable in any way if a card issuer refuses to accept a credit card for any reason. Customer is responsible for any credit card chargeback or similar fees for refused or rejected payments that CaptureNow is entitled to charge under this Agreement. If the payment card associated with Customer’s Account is declined or fails for any reason, CaptureNow will send Customer a notice using the contact information associated with Customer’s Account. CaptureNow may continue to attempt charging Customer’s payment card for outstanding charges and additional fees along with any other rights and remedies available to CaptureNow under this Agreement, at law or in equity.
      2. Unless otherwise stated at the time of purchase or on the invoice, payment shall be made on the same date of the invoice. Any payment not made when due will be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month; or (ii) the highest rate allowed by applicable law. CaptureNow’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly)) will not waive, limit, or prejudice in any way CaptureNow’s rights to collect any amount due. CaptureNow may terminate the Services and this Agreement for non-payment.
    3. Taxes
      1. All rates, fees, and charges are exclusive of applicable Taxes, for which Customer is solely responsible. Taxes may vary based on jurisdiction and the Services provided. Taxes, access fees, universal service or other recovery fees, or similar charges will be adjusted on the date in which those increases become effective as mandated by competent authority. If any withholding tax is levied on the payments, then Customer must increase the sums paid to CaptureNow so that the amount received by CaptureNow after the withholding tax is deducted is the full amount CaptureNow would have received if no withholding or deduction had been made.
    4. Billing Disputes
      1. If Customer reasonably and in good faith disputes any portion of CaptureNow’s charges, it must provide written notice to CaptureNow within fifteen (15) days of the invoice date, identifying the reason for the dispute and the amount being disputed. Customer’s dispute as to any portion of the invoice will not excuse Customer’s obligation to timely pay the undisputed portion of the invoice. Upon resolution, Customer must pay any unpaid amounts within thirty (30) days. Any amounts that are found to be in error resulting in an overpayment by the Customer will be applied as a billing credit against future charges. Customer will be reimbursed any outstanding billing credits at the expiration or termination of this Agreement.
  4. PROVISION OF THE SERVICE
    1. General Terms
      1. CaptureNow will provide the Services as described in the relevant Service Attachment. CaptureNow may enhance, replace, and/or change the features of the Services, but it will not materially reduce the core features, functions, or security of the Services during the Term without Customer’s consent.
    2. Subcontracting
      1. CaptureNow may provide any of the Services hereunder through any of its Affiliates or subcontractors, provided that CaptureNow will bear the same degree of responsibility for acts and omissions for those subcontractors acting on CaptureNow’s behalf in the performance of its obligations under this Agreement as it would bear if such acts and omissions were performed by CaptureNow directly.
  5. USE OF THE SERVICE
    1. Service Requirements and Technical Sufficiency Standards
      1. The Services are dependent upon Customer’s maintenance of sufficient Internet access, telephone access, networks and power (the “Technical Sufficiency Standards”). CaptureNow will not be responsible for any deficiencies in the provision of the Services if Customer’s network does not meet the Technical Sufficiency Standards.
      2. The Services require a properly-configured, high performance, enterprise-grade broadband IP network and connection. Use of the Services with any network, services, or connection not compatible with the Services may result in partial or complete unavailability, interruption, or underperformance of the Services or other services utilizing the same network, services, or connection. Likewise, 2G, 3G, or LTE networks are not recommended for use with the Services. Customer will provide and maintain, at its own cost, an IP network, services, and connection meeting the foregoing standard and all equipment necessary for the Services to connect to and use such network, services, and connection.
    2. Terms of Use
      1. Customer and its End Users may use the Services only in compliance with this Agreement, the Service Attachment, applicable Law, and the Terms of Use referenced below, which are incorporated into and form part of this Agreement. Customer may not use, or permit the use of the Services to interfere with the use of CaptureNow’s Services by others. Customer may not resell the Services. Customer must ensure that its End Users comply with the terms of this Agreement and the Terms of Use. Any breach of this Section (Terms of Use) will be deemed a material breach of this Agreement.
      2. CaptureNow may update the Terms of Use from time to time and will provide notice to Customer at the email address on file with the Account. Such updates will become effective immediately.
      3. The Services must be used in accordance with CaptureNow’s Terms of Use, available at www.capturenow.com/terms-of-use. Notwithstanding anything to the contrary in this Agreement, CaptureNow may act immediately and without notice to suspend or limit the Services if CaptureNow reasonably suspects fraudulent or illegal activity in the Customer’s Account, material breach of the Terms of Use, or use of the Services that could interfere with the functioning of the CaptureNow Network, provided such suspension or limitation may only be to the extent reasonably necessary to protect against the applicable condition, activity, or use. CaptureNow will promptly remove the suspension or limitation as soon as the condition, activity or use is resolved and mitigated in full. If Customer anticipates legitimate but unusual activity on its Account, Customer should contact CaptureNow Support in advance to avoid any Service disruption.
  6. Termination
    1. Termination for Cause
      1. Either Party may terminate this Agreement and any Services purchased hereunder in whole or part by giving written notice to the other Party if the other Party: i) breaches any material term of this Agreement and fails to cure such breach within twenty (20) days after receipt of such notice; ii) at the written recommendation of a government or regulatory agency following a change in either applicable Law or the Services; or iii) to the extent permitted by law upon the commencement by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings or an assignment for the benefit of creditors.
    2. Effect of Termination
      1. If Customer terminates the Services, a portion of the Services, or this Agreement in its entirety due to CaptureNow’s material breach under Section 6(a) (Termination for Cause), Customer will not be liable for any fees or charges for terminated Services for any period subsequent to the effective date of such termination (except those arising from continued usage before the Services are disconnected), and CaptureNow will provide Customer a pro-rata refund of all any prepaid and unused fees or charges paid by Customer for terminated Services.
      2. If this Agreement or any Services are terminated for any reason other than as a result of a material breach by CaptureNow, the Customer must, to the extent permitted by applicable Law and without limiting any other right or remedy of CaptureNow, pay within thirty (30) days of such termination all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services for the remainder of the then-current Term plus related Taxes and fees.
  7. Intellectual Property
    1. Limited License
      1. Subject to, and conditional upon Customer’s compliance with, the terms of this  Agreement, CaptureNow grants to Customer and its End User, a limited, personal, revocable, non-exclusive, non-transferable (other than as permitted under this Agreement), non-sublicensable license to use the software provided or made available by CaptureNow to the Customer as part of the Services (“Software”) to the extent reasonably required to use the Services as permitted by this Agreement, only for the duration that Customer is entitled to use the Services and subject to the Customer being current on its payment obligations.
      2. Customer will not, and will not allow its End Users to:
        1. Sublicense, resell, distribute or assign its right under the license granted under this Agreement to any other person or entity;
        2. modify, adapt or create derivative works of the Software or any associated documentation; reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software;
        3. use the Software for infringement analysis, benchmarking, or for any purpose other than as necessary to use the Services Customer is authorized to use;
        4. create any competing Software or Services; or
        5. remove any copyright or other proprietary or confidential notices on any Software or Services.
    2. IP Rights
      1. CaptureNow’s Rights
        1. Except as expressly provided in this Agreement, the limited license granted to Customer under Section 7(A) (Limited License) does not convey any ownership or other rights or licenses, express or implied, in the Services, any related materials, or in any Intellectual Property and no IP Rights or other rights or licenses are granted, transferred, or assigned to Customer, any End User, or any other party by implication, estoppel, or otherwise. All rights not expressly granted herein are reserved and retained by CaptureNow and its licensors. The Software and Services may comprise or incorporate services, software, technology or products developed or provided by third parties, including open-source software or code (“Third Party Materials”), which may be subject to separate licensing terms and restrictions. Customer acknowledges that misuse of CaptureNow Services may violate third-party IP Rights.
      2. Customer Rights
        1. As between CaptureNow and Customer, Customer retains title to all IP Rights that are owned by the Customer or its suppliers. To the extent reasonably required or desirable for the provision of the Services, Customer grants to CaptureNow a limited, personal, non-exclusive, royalty-free, license to use Customer’s IP Rights in the same. Customer must provide (and is solely responsible for providing) all required notices and obtaining all licenses, consents, authorizations or other approvals related to the use, reproduction, transmission, or receipt of any Customer Content that includes personal or Confidential Information or incorporates any third-party IP rights.
    3. Use of Marks
      1. Customer hereby grants CaptureNow permission to use Customer’s name and logo in marketing, sales, financial and public relations materials and other communications solely to identify Customer as a CaptureNow customer. CaptureNow hereby grants the Customer the express right to use CaptureNow’s logo solely to identify CaptureNow as a provider of services to Customer. Other than as expressly stated herein, neither party shall use the other party’s marks, codes, drawings or specifications without the prior written permission of the other party.
  8. CaptureNow Machine Learning
    1. Customer acknowledges that a fundamental component of CaptureNow is the use of a machine learning algorithm and artificial intelligence technologies (“AI Model”) for the purpose of improving and providing CaptureNow’s Services. To the extent Customer has any IP Rights in the information supplied to the AI Model during the course of the performance of the Services (“AI Content”), Customer agrees that CaptureNow is hereby granted an unlimited, royalty-free, right to use and retain (during and after the Term hereof) such AI Content.   
    2. Customer agrees that CaptureNow (a) may use and store AI Content to maintain and provide the applicable Service, including development and improvement of such artificial intelligence related Services (“AI Services”); (b) CaptureNow may use and store AI Content to develop, train, and improve the AI Model.
    3. Customer is responsible for providing legally adequate privacy notices to End Users related to the use of any AI Service and the AI Model, and obtaining any necessary consent from such End Users for the processing of AI Content and the storage, use, and transfer of AI Content as described under this Section 8(c).
    4. Customer agrees that CaptureNow is not responsible for any decisions made, advice given, actions taken, or failures to take action based on the use of the AI Services. The AI Model generates predictions based on patterns in data. Output generated by a machine learning model is probabilistic and should be evaluated for accuracy as appropriate for your use case, including by employing human review of such output.
  9. Confidentiality
    1. Restrictions on Use or Disclosures by Either Party
      1. During the Term of this Agreement and for at least two (2) years thereafter, the Receiving Party shall hold the Disclosing Party’s Confidential Information in confidence, shall use such Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall use at least as great a standard of care in protecting the Confidential Information as it uses to protect its own Confidential Information.
      2. Each Party may disclose Confidential Information only to those of its employees, agents or subcontractors who have a need to it in order to perform or exercise such Party’s rights or obligations under this Agreement and who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. Each Party may disclose the other Party’s Confidential Information in any legal proceeding or to a governmental entity as required by Law.
      3. These restrictions on the use or disclosure of Confidential Information do not apply to any information which is independently developed by the Receiving Party or lawfully received free of restriction from another source having the right to so furnish such information; after it has become generally available to the public without breach of this Agreement by the Receiving Party; which at the time of disclosure was already known to the Receiving Party, without restriction as evidenced by documentation in such Party’s possession; or which the Disclosing Party confirms in writing is free of such restrictions.
      4. Upon termination of this Agreement, the Receiving Party will promptly delete, destroy or, at the Disclosing Party’s request, return to the Disclosing Party, all Disclosing Party’s Confidential Information in its possession, including deleting or rendering unusable all electronic files and data that contain Confidential Information, and upon request will provide the Disclosing Party with certification of compliance with this subsection.
  10. Data Protection
    1. Data Privacy
      1. CaptureNow respects Customer’s privacy and will only use the information provided by Customer to CaptureNow or collected in the provision of the Services in accordance with: the CaptureNow Privacy Policy available at www.capturenow.com/privacy-policy, which is hereby incorporated by reference. CaptureNow may update the Privacy Policy from time to time and will provide notice of any material updates to the Customer as required by applicable Laws at the email address on file with the Account. Such updates will be effective thirty (30) days after such notice to Customer.
    2. Data Security
      1. CaptureNow will take commercially reasonable precautions, including, without limitation, technical (e.g., firewalls and data encryption), administrative and physical measures, to help safeguard Customer’s Account, Account Data, and Customer Content against unauthorized use, disclosure, or modification.
      2. Customer must protect all End Points using industry-standard security measures. Customer is solely responsible to keep all user identifications and passwords secure. Customer must monitor use of the Services for possible unlawful or fraudulent use. Customer must notify CaptureNow immediately if Customer becomes aware or has reason to believe that the Services are being used fraudulently or without authorization by any End User or third party. Failure to notify CaptureNow may result in the suspension or termination of the Services and additional charges to Customer resulting from such use. CaptureNow will not be liable for any charges resulting from unauthorized use of Customer’s Account.
    3. Software Changes
      1. CaptureNow may from time-to-time push software updates and patches directly to Customer’s device(s) for installation and Customer will not prevent CaptureNow from doing so. Customer must implement promptly all fixes, updates, upgrades and replacements of software and third-party software that may be provided by CaptureNow. CaptureNow will not be liable for inoperability of the Services or any other Services failures due to failure of Customer to timely implement the required changes.
    4. Reselling of Information
      1. In accordance with the provisions of the California Consumer Privacy Act of 2018 (“CCPA”), Customer acknowledges and agrees that Customer may not resell any information provided to Customer by CaptureNow, including, but not limited, personal information shared related to consumers.
  11. LIMITATION OF LIABILITY
    1. Excluded Damages
      1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND; (2) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (3) LOSS OF USE, LOSS OR CORRUPTION OF DATA; OR (4) LOSS OF BUSINESS OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF COMPANY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. COMPANY WILL NOT BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW.
    2. Direct Damages
      1. EXCEPT AS SET FORTH HEREIN, THE TOTAL CUMULATIVE LIABILITY OF COMPANY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE PREVIOUS SIX (6) MONTHS.
      2. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED OR EXCLUDED PURSUANT TO APPLICABLE LAW.
    3. Survival
      1. The limitations of liability contained in this Section 11 (Limitation of Liability) will survive termination or expiration of this Agreement and apply in any and all circumstances (except as expressly set forth above), including without limitation in the event of any failure of the essential purpose of any limited warranty or available remedy provided herein.
  12. Indemnification
    1. Indemnification Obligations
      1. Customer agrees to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns (the “Indemnified Parties”) from and against any claims made by a third party or End User, and any related or resulting liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees)  arising out of or relating to i) violation of applicable Law in connection with the use of the Services, including, but not limited to any TCPA violation; ii) use of the Services in a manner not authorized by this Agreement; iii) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of CaptureNow, or v) any breach of this Agreement. Further, Customer will indemnify and hold harmless CaptureNow against all damages, costs, and legal fees finally awarded against CaptureNow by a court of competent jurisdiction in connection with any such claim or agreed to in a written settlement agreement approved in writing by the Customer.
    2. Defense and Indemnification Procedures
      1. Indemnified Parties must provide Customer (the “Indemnifying Party”) with the following: (a) prompt written notice of the claim, and (b) reasonable information, cooperation, and assistance in connection with the defense and settlement of the claim. Any Indemnified Parties’ failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section 12 (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Parties will have the right to participate in the defense of such claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Parties express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Parties by each party bringing such claim.
  13. Warranties
    1. CaptureNow Warranty
      1. CaptureNow will provide the Services in material compliance with the terms of this Agreement. To the extent permitted by Law, CaptureNow shall pass through to Customer any and all warranties CaptureNow receives in connection with services and software provided to Customer.
    2. Customer Warranty
      1. Customer’s and its End Users’ use of the Services must at all times comply with all applicable Laws, this Agreement, the Service Attachment, and the Terms of Use.
    3. Disclaimer of Warranties
      1. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND CAPTURENOW MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. TO THE EXTENT THAT CAPTURENOW CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
      2. CAPTURENOW SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO THIRD PARTY MATERIALS AND THE SERVICES PROVIDED BY THIRD PARTIES UTILIZED TO FACILITATE THE PROVISION OF CAPTURENOW SERVICES. IN THE EVENT THE FUNCTIONALITY OF THE CAPTURENOW SERVICES IS REDUCED OR COMPLETELY DISRPUTED AS A RESULT OF THE FAILURE OF THIRD PARTY MATERIALS AND THIRD PARTY SERVICES, CUSTOMER WAIVES ANY AND ALL CLAIMS AGAINST CAPTURENOW FOR SUCH REDUCTION OR DISRUPTION OF SERVICES. 
  14. Arbitration and Dispute Resolution
    1. Good Faith Attempt to Settle Disputes
      1. In the event of any dispute or claim arising out of or relating to the Agreement (a “Dispute”), each Party will appoint a duly authorized representative which will confer with the other Party before either Party brings legal action, to make a reasonable and good faith effort to settle or otherwise resolve such Dispute.
    2. Arbitration Agreement.
      1. In the event that the Parties are unable to resolve a Dispute, Customer agrees that any such Dispute will be resolved by binding arbitration, rather than in court, except that CaptureNow may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This agreement to arbitrate (“Arbitration Agreement”) shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
    3. Arbitration Rules, Forum, and Terms.
      1. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, Customer must send a letter via certified mail to 1874 Defoor Avenue Northwest, Atlanta, Georgia 30318, requesting arbitration and describing your dispute or claim or request for relief to CaptureNow. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider, and located in the State of Georgia county of Fulton. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
      2. The arbitrator shall have exclusive authority to (i) determine the scope and enforceability of this Arbitration Agreement and (ii) resolve any dispute related to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of CaptureNow and Customer. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under Applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
      3. CUSTOMER AND CAPTURENOW HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. Customer and CaptureNow are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as set forth above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
      4. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR END-USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR END-USER. If a decision is issued stating that Applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of Georgia. All other disputes, claims, or requests for relief shall be arbitrated.
      5. Except as provided in above, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
      6. This Arbitration Agreement will survive the termination of your relationship with us.
      7. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
  15. Miscellaneous
    1. Relationship of the Parties
      1. CaptureNow and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between CaptureNow and Customer.
    2. Assignment
      1. Customer may not assign the Agreement or any portion thereof without Company’s prior written consent (which such consent may not be unreasonably withheld or delayed), however Customer may assign the Agreement and all of Customer’s rights and obligations thereunder without consent.
    3. Notices
      1. Except where otherwise expressly stated in the Agreement, all notices or other communications must be in English and are deemed to have been fully given when made in writing and delivered in person, upon delivered email or five days after deposit with a reputable overnight courier service, and addressed as follows:

        to CaptureNow at:

        1874 DEFOOR AVENUE NORTHWEST

        ATLANTA, GEORGIA 30318

        Gary@capturenow.com.



        and to Customer at either the physical address or email address associated with the Customer Account. Customer acknowledges and agrees that all electronic notices have the full force and effect of paper notices. The addresses to which notices may be given by either Party may be changed upon written notice given to the other Party pursuant to this Section 15C (Notices) or by Customer in the Administrative Portal.
    4. Force Majeure
      1. Excluding either Party’s payment obligations under the Agreement, neither Party will be responsible or liable for any failure to perform or delay in performing to the extent resulting from a Force Majeure Event. The suspension of obligations under this Section 15D (Force Majeure) may under no circumstances be a cause of liability for failure to perform the obligation in question, nor induce the payment of damages or penalties for late payment.
    5. Third-Party Beneficiaries
      1. CaptureNow and Customer agree that there will be no third-party beneficiaries to this  Agreement.
    6. Internal Customer Activities
      1. CaptureNow does not have any obligation to assist in or otherwise mediate in the event of any dispute between Customer, End Users, or any third party with respect to ownership or control of any Account or Account Data. All information within CaptureNow’s records regarding the ownership or control of an Account or Account Data, Services ordered, and numbers assigned to an Account will be definitive and controlling for purposes of administering the Account. In the event of any such dispute, CaptureNow may take any course of action that it deems appropriate based on the information available, which include declining to take any course of action.
      2. CaptureNow may access your Account and related data as required to provide the Services. However, CaptureNow has no obligation to access your Account, Account Data or any Customer Content for any other purposes. Services do not include or consist of any investigation, review, verification, production, compilation, modification, or other similar services for any Account Data or Customer Content. Services do not include the provision of any legal, accounting or other professional services. See Section 8 for more information on how we may use AI Content.
    7. Headings, Interpretation
      1. The headings, section titles, and captions used in the Agreement are for convenience of reference only and will have no legal effect. All defined terms include related grammatical forms, and, whenever the context may require, the singular form of nouns and pronouns include the plural, and vice versa. The Parties agree that this Agreement will be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a Party or Parties on the grounds that the Party or Parties drafted or was more responsible for drafting the provision(s).
    8. Geographic Restrictions
      1. CaptureNow is based in the United States. CaptureNow provides the Services for use only by persons located in the United States. We make no claims that the Services are accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If Customer accesses the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
    9. Governing Law
      1. All matters relating to this Agreement, and any Dispute, shall be governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction).
    10. Anti-Bribery
      1. Each Party represents that in the execution of this Agreement and in the performance of its obligations under this Agreement it has complied and will comply with all applicable anti-bribery Laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and similar applicable Laws.
    11. Export Control
      1. Any services, products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export Laws and regulations. Customer will not use, distribute, transfer, or transmit the services, products, software, or technical information (even if incorporated into other products) except in compliance with U.S. and other applicable export regulations.
    12. Regulatory and Legal Changes
      1. In the event of any change in Law, regulation or industry change that would prohibit or otherwise materially interfere with CaptureNow’s ability to provide Services under this Agreement, CaptureNow may terminate the affected Services or this Agreement or otherwise modify the terms thereof.
    13. Entire Agreement
      1. The Agreement, together with any exhibits, Orders, and Service Attachments, each of which is expressly incorporated into this Agreement with this reference, constitutes the entire agreement between the Parties and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise, regarding such subject.
    14. Order of Precedence
      1. In the event of any conflict between the documents comprising this Agreement, precedence will be given to the documents in the following descending order: (i) the applicable Order Form; (ii) the applicable Service Attachments; (iii) the main body of this Agreement; (iv) Terms of Use and Privacy Policy; and (v) and any other document expressly referred to in this Agreement which governs the Services.
    15. Amendments
      1. Except as otherwise provided, this Agreement may only be modified by a written amendment (provided electronically or otherwise) executed by authorized representatives of both Parties. In no event will handwritten changes to any terms or conditions, including in the applicable Order, be effective. Notwithstanding the foregoing, CaptureNow may update this Agreement or any of its Equipment, Terms of Use, or Privacy Policy from time to time and will provide notice to Customer at the email address on file with the Account. Such updates will become effective thirty (30) days after such notice to Customer. In the event that any such update would be of material detriment to Customer and is not required by Law, Customer must inform CaptureNow of its objection within ten (10) days of receiving the notice provided under this provision. If the Parties, negotiating in good faith cannot reach agreement within thirty (30) days, either Party may terminate the portion of the Services affected by the change without penalty by written notice to the other Party. Any use of the Services after the effective date will be deemed Customer’s acceptance of the change.
    16. Severability and Waiver
      1. In the event any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, such provision(s) will be stricken and the remainder of this Agreement will remain legal, valid and binding. The failure by either Party to exercise or enforce any right conferred by this Agreement will not be deemed to be a waiver of any such right or to operate so as to bar the exercise or enforcement of any such or other right on any later occasion. Except as otherwise expressly stated in this Agreement, all rights and remedies stated in the Agreement are cumulative and in addition to any other rights and remedies available under the Agreement, at Law, or in equity.
    17. Execution
      1. Each Party represents and warrants that: (a) it possesses the legal right and capacity to enter into the Agreement and to perform all of its obligations thereunder; (b) the individual executing an Electronic Signature regarding the Agreement on that Party’s behalf has full power and authority to execute and deliver the same; and (c) the Agreement will be a binding obligation of that Party.
    18. Electronic Signature and Counterparts
      1. This Agreement may be executed electronically and in separate counterparts each of which when taken together will constitute one in the same original. Each Party agrees that an Electronic Signature, whether digital or encrypted, is intended to authenticate this Agreement and to have the same force and effect as manual signatures.
    19. Survival
      1. The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement or an Order will survive expiration or termination of this Agreement or the Order, including without limitation payment obligations, warranty disclaimers, indemnities, limitations of liability, definitions and miscellaneous.

Attachment A – Definitions

Definitions. Capitalized terms used in this Agreement but otherwise not defined have the following meaning:

  • “Account” means the numbered account established with CaptureNow and associated with Customer and the Services provided to Customer under this Agreement. For billing and convenience purposes, multiple services may be included in a single billing account, and/or a single Customer may have multiple billing accounts encompassing different geographic locations, business units, or other designations as requested by Customer and accepted by CaptureNow.
  • “Account Administrator” means the person(s) who have been granted authority by Customer to set up, amend, or otherwise control settings and/or make additional purchases for the Account via the Administrative Portal. Account Administrators may have varying levels of Account rights, skills, or permissions.
  • “Account Data” means: any business contact information provided with the Account; CaptureNow-generated logs of leads or other metadata developed or collected in the provision of the Services; configuration data; and records of any Services purchased under this Agreement.
  • “Administrative Fees” means any administrative recovery fees charged by CaptureNow to Customer.
  • “Administrative Portal” means the online administrative portal through which Account Administrators control settings and/or make additional purchases for the Account.
  • “Affiliate(s)” means a person or entity that is controlled by a Party hereto, controls a Party hereto, or is under common control with a Party hereto, and “control” means beneficial ownership of greater than fifty percent (50%) of an entity’s then-outstanding voting securities or ownership interests.
  • “CaptureNow Materials” means documentation, either electronic or otherwise, that CaptureNow provides or makes available to the Customer describing the Services, including the components of each subscription package, if applicable, and any other features and functionality offered as part of the Services. The CaptureNow Materials may include without limitation manuals, product descriptions, user or installation instructions, diagrams, printouts, listings, flowcharts and training materials related to the Services.
  • “Confidential Information” means any information disclosed by or on behalf of the Disclosing Party to the Receiving Party that should reasonably be considered as confidential given the nature of the information and the circumstances surrounding its disclosure.
  • “Customer Content” means the content of calls, facsimiles, SMS messages, voicemails, voice recordings, shared files, conferences or other communications transmitted or stored through the Services.
  • “Disclosing Party” means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed by such Party’s agents, including but not limited to, its Affiliates, officers, directors, employees and attorneys.
  • “Dispute” has the meaning set forth in Section 14(A) (Arbitration and Dispute Resolution).
  • “Effective Date” means the date of execution of the initial Order.
  • “Electronic Signature” means an electronic sound, symbol, or process, including clicking a digital button to accept, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.
  • “End Point” means an application or device through which a Customer or any End-User might access and/or use any of the Services.
  • “End User” means an individual user to whom Customer makes the Services available, and may be a natural person, and may include but is not limited to Customer’s employees, consultants, clients, prospective clients, customers, leads, external users, invitees, contractors and agents.
  • “Force Majeure Event” means any event or circumstance that are beyond that Party’s control, which are considered without limitation as force majeure: any act of God; national emergency; pandemic or epidemic; failure of Third Party Materials, third party services, or third party telecommunications networks; riot; war; terrorism; governmental act or direction; change in Laws; fiber, cable, or wire cut; sub-processor failure; power outage or reduction; rebellion; revolution; insurrection; earthquake; storm; hurricane; flood, fire, or other natural disaster; strike or labor disturbance; breakage or accident to machinery or equipment; or other cause, whether similar or dissimilar to the foregoing, not resulting from the actions or inactions of such Party.
  • “Indemnifying Party” and “Indemnified Party” have the meanings set forth in Section 12 (Defense and Indemnification Procedures).
  • “Initial Term” has the meaning set forth in Section 2 (Services Term and Automatic Renewal).
  • “Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (a) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (b) copyrights and copyright registrations, and “moral” rights; (c) the protection of trade and industrial secrets and Confidential Information; (d) other proprietary rights relating to intangible property; (e) trademarks, trade names and service marks; (f) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (g) analogous rights to those set forth above; and (h) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).
  • “Law” means any law, statute, regulation, rule, ordinance, administrative guidance, treaty or convention, or court or administrative order or ruling of any governing Federal, State, local or non-U.S. governmental body with jurisdiction over the Services. This includes, but is not limited to, the Telephone Consumer Protection Act (“TCPA”).
  • “Order(s)” or “Order Form(s)” means a request or order for Services describing the type and quantity of Services required by Customer and submitted and accepted by the Parties in accordance with Section 2(A) (Ordering Services). The Order may be presented and executed on the CaptureNow website or via the Administrative Portal.
  • “Receiving Party” means the Party or its agents, including, but not limited to its Affiliates, officers, directors, employees and attorneys receiving Confidential Information.
  • “Renewal Term” has the meaning set forth in Section 2(D) (Services Term).
  • “Service(s)” means all services provided under this Agreement or any applicable Service Attachment and set forth in one or more Order(s).
  • “Service Attachment” means documents appended to the Agreement containing additional terms for equipment and Services.
  • “Start Date” means the date so identified in the relevant Order or the date on which Customer orders Services via the website or the Administrative Portal.
  • “Taxes” means any and all federal, state, local, municipal, foreign and other taxes and fees charged or collected from Customers, including but not limited to any Universal Service Fund, TRS and 911 taxes and fees.
  • “Term” means the Initial Term plus any Renewal Terms.
  • “Terms of Use” refers to any of the policies identified in Section 5B (Terms of Use).
  • “Usage” means any charges incurred in connection with the number of sessions between CaptureNow Voice and leads or customers that connect with your CaptureNow-related channel (ie., inbound phone call) and any products listed on an Order Form.