Kapture, Inc.
Terms of Service

Last Modified: October 2, 2006

The following are the Kapture, Inc. ("Kapture") Terms of Service.

1. Acceptance and Modification

By using or accessing this website (the "Site"), any Content (defined below), or the capturing services provided through the Site (the "Services") you agree to be bound by these Terms of Service and by the Kapture Privacy Policy, which is incorporated herein by reference. The Terms of Service and Privacy Policy, collectively referred to as the "Agreement," constitute a legal agreement between you and Kapture. Please read the Agreement carefully. If you do not agree to these terms then you may not use the Site, access any Content, or use any Services. Although you may be asked to indicate your assent to the terms of this Agreement only once (e.g., when you register for a Kapture account), the terms of this Agreement, as modified by Kapture from time to time in accordance with the next paragraph, will govern all your future use of the Site, Content and Services.

Kapture may revise these Terms of Service and the Privacy Policy from time to time. Each revision will be marked with a revision date and will be posted on the Site; Kapture recommends that you review them from time to time to note any changes. By continuing to access or use the Site, you agree to be bound by any Terms of Service and Privacy Policy in effect at the time of such access or use. If you do not agree to the modified terms then you must cease to use the Site and Services, and refrain from accessing any Content.

Kapture may modify, suspend or discontinue, temporarily or permanently, the Site and Services, and may remove, modify or delete any Content at any time, in its sole discretion.

2. Accounts and Passwords

In order to access certain features of the Site, and to use the Services, you must register and create a Kapture account. You may create a Kapture account at www.KaptureInfo.com. Once you have created an account, you will be a "Registered User." In creating an account, you agree to provide accurate, current and complete information to Kapture. Registration information you provide is used in accordance with Kapture's Privacy Policy.

You are responsible for safeguarding the password that you use to access the Site and Services. You agree not to disclose your password to any third party. You agree to take sole responsibility for any activities or actions under your password, whether or not you have authorized such activities or actions. You will immediately notify Kapture of any unauthorized use of your password. You are responsible for keeping your account information current and accurate; Kapture will have no liability for failure to deliver notices that result from inaccurate account information or otherwise.

3. Content

"Content" means information, text, graphics, or other materials appearing on the Site, including Kapture Content, Third Party Content and User Content. "Kapture Content" means Content that is owned, or licensed from a third party, by Kapture. "Third Party Content" means any third party Content that appears or is hosted on the Site as a result of use of the Services, including third party web pages and text and images contained therein. "User Content" is any Content posted to the Site by you during your use of the Site or the Services. "Non-Kapture Content" includes "Third Party Content," "User Content," any third party websites and other third party resources.

4. Kapture's Limited License to You

Subject to your compliance with the terms and conditions of this Agreement, Kapture grants you a non-transferable, non-sublicensable right to download and use the browser plugin (the "Plugin") only for your personal, non-commercial use. You agree not to use the Plugin or any Kapture Content commercially and not to copy, modify, distribute, create derivative works of, publicly display or perform any Kapture Content (except as such acts are necessary or incidental to your use of the Plugin).

No license or right is granted, by implication or otherwise, to you, under any intellectual property rights or other proprietary rights now or hereafter owned or controlled by Kapture or its licensors, except for licenses and rights expressly granted in this Agreement, and Kapture reserves all other rights. If you want to make commercial use of the Site, you must enter into a written agreement with Kapture to do so, in advance of any such use.

5. Your License to Kapture

Kapture does not claim any ownership rights in any User Content that you post to or make available through the Site. After posting or making User Content available through the Site, you continue to retain all ownership or license rights in the User Content and you continue to have the right to use the User Content as you choose. However, by posting or making available User Content through the Site, you hereby grant to Kapture a nonexclusive, royalty-free, transferable, sublicensable, worldwide, perpetual, irrevocable license to use, copy, modify, distribute, publicly display and perform (whether by means of a digital audio transmission or otherwise) and process User Content or any part of it solely on and through the Site, including but not limited to (a) adapting the format of User Content for suitable display on the Site; and (b) displaying, in Kapture's sole discretion, User Content in search results generated by the Kapture search engine.

6. Term

Kapture reserves the right to terminate your access to and rights to use the Site and Services at any time and for any reason, with or without notice.

7. Assurances

By submitting User Content to Kapture, you represent and warrant to Kapture the following: (a) that you either own all necessary intellectual property rights in the User Content or have secured all necessary licenses or other rights to grant the rights in Section 5 above; (b) that you have the consent, release, and/or permission of each identifiable individual person in the User Content to use the name or likeness of each such identifiable individual person to enable inclusion and use of the User Content on the Site; (c) that your use of the Site or the Services does not violate any agreement that you have with a third party; and (d) that no portion of the User Content infringes another's copyright, trademark, patent, trade secret or other intellectual property right, moral right, right of publicity or privacy, and that no portion of the User Content is pornographic (including but not limited to containing any child pornography), deceptive, threatening, abusive, inciting of unlawful action, defamatory, libelous, vulgar or violent or constitutes hate speech. Kapture reserves the right, in its sole discretion, at any time, to remove any Content, including User Content, that Kapture believes to be in violation of this Agreement, or otherwise deems objectionable.

8. Restrictions

Notwithstanding the license grant to you in Section 4, you will not do any of the following while using the Site, Services or Content:

Kapture will have the right to investigate and prosecute violations of any of the above restrictions, including but not limited to intellectual property rights infringement and Site security issues, to the fullest extent of the law. Kapture may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement. You acknowledge that Kapture has no obligation to monitor your access to or use of the Site, Services or Content, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with this Agreement or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.

9. Notification of Copyright Infringement

Digital Millennium Copyright Act

Kapture respects copyright law and expects its users to do the same. In accordance with the Digital Millennium Copyright Act ("DMCA"), the text of which may be found on the U.S. Copyright Office web site at http://www.copyright.gov/legislation/dmca.pdf, Kapture will respond expeditiously to notices of alleged copyright infringement that are reported to Kapture's Designated Copyright Agent, identified in the sample Notice below.

Notices of Alleged Infringement for Content Made Available Through the Kapture Search Engine and on the Kapture Site.

If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing the following notice ("Notice") and delivering it to the Designated Copyright Agent.

DMCA Notice of Alleged Infringement ("Notice")

  1. Identify the copyrighted work that you claim has been infringed, or-if multiple copyrighted works are covered by this Notice-you may provide a representative list of the copyrighted works that you claim have been infringed.
  2. Identify the material or link you claim is infringing and provide a description of where the infringing work is located on the applicable Site. For allegedly infringing content posted directly on the Site, you must include, at a minimum, the URL or other location where that material may be found. For allegedly infringing results found via a Kapture search engine, you must provide (a) the search query that you used and (b) the URL for each search result that points to allegedly infringing material. For example, if you searched on the term, "Kapture" and found that one or more of the results directly linked to a web page or file that you believed to be infringing, then you would provide the following information:
    • Search Query: "Kapture"
    • Infringing Web Pages: www.Kaptureinfo.com/<searchquery>
  3. Provide your mailing address, telephone number, and, if available, email address.
  4. Include both of the following statements in the body of the Notice:
    • "I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., fair use)."
    • "I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
  5. Provide your full legal name and your electronic or physical signature.

Deliver this Notice, with all items completed, to Kapture's Designated Copyright Agent:

Erik Lane, Copyright Agent
Kapture, Inc.
copyright@kaptureinfo.com

While Kapture considers all such notices seriously, you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that material or activity is infringing. For example, a recent case ordered a company that sent infringement notification seeking removal of online materials that were protected by copyright's fair use doctrine to pay such costs and attorneys' fees. The company agreed to pay over $100,000. For more information, please see http://www.onlinepolicy.org/action/legpolicy/opg_v_diebold/. Accordingly, if you are uncertain whether material infringes your copyright, you may want to seek the advice of an attorney.

Kapture does not permit copyright infringing activities on the Site and will, if properly notified that Content infringes, remove or disable access to such Content. If the allegedly infringing material is referenced by a link displayed through the search engine, Kapture may block its search engine from returning that link. Kapture reserves the right to remove or disable access to Content at any time, without prior notice.

Repeat Infringers

Kapture will terminate Registered Users or other account holders whom it determines to be repeat infringers. If you believe that a Registered User or other account holder is an infringer, please follow the instructions above to contact Kapture's Designated Copyright Agent and provide information sufficient for Kapture to verify that the Registered User or other account holder is an infringer.

Subpoenas

Kapture may be required to disclose information to individuals asserting rights under the Digital Millennium Copyright Act. You hereby authorize Kapture to release information about you if required by law or subpoena without notice to you.

10. Indemnification

You will indemnify, defend and hold Kapture and its agents, affiliates, officers and employees harmless from any liability, loss, damages or expense (including but not limited to reasonable attorneys' fees and costs) arising or resulting from any third party claim or proceeding in which it is alleged that any User Content or the use thereof infringes or violates the intellectual property rights, privacy rights, publicity rights or moral rights of another or is unlawful.

11. Warranty Disclaimer

KAPTURE PROVIDES THE SITE AND SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS AND KAPTURE MAKES NO WARRANTIES TO YOU, EXPRESS OR IMPLIED, WITH RESPECT TO THE SITE, SERVICES, CONTENT OR OTHERWISE, AND DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE SITE AND ANY IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGMENT. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you.

12. Limitation of Liability

YOU ACKNOWLEDGE THAT KAPTURE WILL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SITE AND THE SERVICES AVAILABLE THROUGH THE SITE REMAINS WITH YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW. To the full extent permitted by law, and subject to the limitation of the next two sentences, Kapture's entire liability to you hereunder will be limited to the greater of the amounts paid by you to Kapture hereunder and five hundred dollars ($500.00), including, but not limited to, damages that result from Kapture's or any third party's use of the Content or from any authorized or unauthorized use of the Site or from the failure to include any User Content in any search results generated by the Kapture search engine. IN NO EVENT WILL KAPTURE BE LIABLE TO YOU, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OR OTHER THEORY) FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SITES OR ANY SERVICES AVAILABLE THROUGH THE SITES, EVEN IF KAPTURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. You acknowledge that Kapture has set its financial terms and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between the parties and form a basis of the bargain between the parties. Some jurisdictions do not allow the limitation of liability, so the foregoing limitation may not apply to you.

13. Third Party Websites and Content

Use of the Services typically involves access to and use of Non-Kapture Content. You acknowledge and agree that Kapture is not responsible or liable for: (i) Non-Kapture Content; or (ii) the availability or accuracy of Non-Kapture Content. You acknowledge and agree that Kapture has no responsibility to control or monitor any Non-Kapture Content posted to the Site or available through the Services. Furthermore, you acknowledge sole responsibility for and assume all risk arising from your access to or use of any Non-Kapture Content. Kapture does not endorse, recommend, verify, evaluate or guarantee any information, services or products comprising Non-Kapture Content, and expressly disclaims any and all liability relating thereto. Kapture is not responsible for, nor does Kapture manage, control or guarantee the truth, accuracy, completeness, integrity, safety, timeliness, quality, appropriateness, legality or applicability of any Non-Kapture Content. Kapture reserves the right to (a) disable capturing or sharing of certain Non-Kapture Content, including, without limitation, third party websites that charge a fee for access; and (b) remove any Content, at any time, without notice.

14. Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of Kapture used herein are trademarks or registered trademarks of Kapture. Any other trademarks, service marks and trade names are the trademarks or registered trademarks of their respective parties. You will not delete or in any manner alter the copyright, trademark or other proprietary rights notices appearing on any Content except User Content.

15. Force Majeure

Without limiting the foregoing, under no circumstances will Kapture or its licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including, without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light or air conditioning.

16. General

You may not assign any rights granted to you or delegate any of your duties hereunder and any attempt to do so is void and of no effect. Kapture may assign its rights and delegate its duties under this Agreement in their entirety in connection with a merger, reorganization or sale of all, or substantially all, of its assets relating to this Agreement. Nothing in this Agreement will constitute a partnership or joint venture between you and Kapture. The failure of Kapture at any time or times to require performance of any provision hereof will in no manner affect its right at a later time to enforce the same unless the same is waived in writing. This Agreement will be governed by California law without regard to or application of choice-of-law rules or principles and will be adjudicated in the federal or state courts located in San Francisco County, California. You hereby consent to personal jurisdiction and venue therein. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. The headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. This Agreement constitutes the complete and exclusive understanding and agreement between you and Kapture regarding this subject matter, and supersedes all prior and contemporaneous agreements or understandings relating to such subject matter.

If you have any questions or concerns about this Agreement or any issues raised in this Agreement or on the Site, please contacts Kapture at: support@kaptureinfo.com.