Terms of Service

Part A. Public Site Terms

1. Permitted Use of the Public Site

Subject to these Terms, you may access and use the Public Site for your own lawful internal business, educational, or informational purposes.

You may not use the Public Site in any manner that:

• violates any applicable law or regulation;
• infringes, misappropriates, or otherwise violates the rights of Capti or any third party;
• interferes with or disrupts the Public Site or the servers or networks connected to it;
• attempts to gain unauthorized access to any part of the Public Site, any related systems, or any accounts, data, or materials not intended for you;
• uses the Public Site to transmit unlawful, infringing, defamatory, abusive, obscene, fraudulent, or otherwise objectionable material; or
• could damage, disable, overburden, or impair the Public Site.

2. Public Site Content and Intellectual Property

The Public Site, including its layout, design, text, graphics, logos, images, software, interfaces, audiovisual materials, downloads, and other content made available by Capti on or through the Public Site (“Site Content”), is owned by or licensed to Capti and is protected by intellectual property and other applicable laws.

Subject to these Terms, Capti grants you a limited, revocable, non-exclusive, non-transferable right to access and use the Public Site and to view the Site Content solely for your own lawful internal business, educational, or informational purposes.

Except as expressly permitted by these Terms, you may not:

• copy, reproduce, republish, distribute, modify, display, perform, create derivative works from, or otherwise exploit any Site Content;
• remove, alter, or obscure any copyright, trademark, or other proprietary notices;
• use any Site Content for competitive analysis or to develop, train, benchmark, or support a competing product or service; or
• frame, mirror, or otherwise re-display any portion of the Public Site on any other website or service.

All rights not expressly granted are reserved by Capti and its licensors.

3. Public Site Restrictions

Without limiting Section 1 or Section 2, you may not, and may not permit any third party to:

• use any robot, spider, scraper, crawler, data mining tool, or similar automated means to access, search, monitor, copy, extract, or compile content or information from the Public Site;
• attempt to probe, scan, test, or circumvent the vulnerability or security of the Public Site;
• upload, post, transmit, or otherwise introduce any virus, malware, Trojan horse, worm, time bomb, corrupted file, or other harmful code;
• reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying structure of any software or technology used in connection with the Public Site, except to the extent such restriction is prohibited by applicable law;
• use the Public Site in a manner intended to harvest personal information or other data from users of the Public Site; or
• use the Public Site for any fraudulent, misleading, or unlawful purpose.

4. Third-Party Links and Resources

The Public Site may contain links to third-party websites, services, content, or resources that Capti does not own or control. Those links are provided for convenience only.

Capti is not responsible for, and does not endorse, control, or assume responsibility for, any third-party websites, services, content, products, or resources, or for any terms, policies, or practices of any third party. If you access any third-party website or resource from the Public Site, you do so at your own risk.

5. Copyright Complaints

Capti respects the intellectual property rights of others and responds to notices of alleged copyright infringement in accordance with applicable law.

If you believe that content made available on or through the Public Site infringes your copyright, you may submit a written notice to Capti’s designated copyright contact that includes the information required by applicable law, including the Digital Millennium Copyright Act, where applicable.

Capti may remove or disable access to allegedly infringing material and may terminate access for repeat infringers where appropriate.

Copyright notices should be sent to:

Charmtech Labs LLC
Attn: Legal Department
PO Box 896
Buffalo, NY 14205
Email: info@capti.com

6. Public Site Availability and Changes

Capti may modify, suspend, or discontinue all or any part of the Public Site at any time, with or without notice.

Capti does not undertake any obligation to maintain the Public Site, any particular feature of the Public Site, or any content made available through the Public Site.

7. Public Site Disclaimer

The Public Site and all Site Content are provided on an “as is” and “as available” basis. To the fullest extent permitted by applicable law, Capti disclaims all warranties, whether express, implied, statutory, or otherwise, with respect to the Public Site and Site Content, including any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, completeness, or availability.

Capti does not warrant that the Public Site will be uninterrupted, error-free, secure, or free of viruses or other harmful components, or that any content on the Public Site will be current, complete, or accurate.

Part B. School Services Terms

8. Access to School Services

Subject to these Terms and any applicable Order, Capti grants you a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the School Services during the applicable subscription or service period solely for the Customer’s internal educational and administrative purposes, or as otherwise expressly permitted in the applicable Order.

Your right to access and use the School Services is limited to the scope, number of Authorized Users, product modules, and other parameters set forth in the applicable Order or account arrangement.

Capti will use commercially reasonable efforts to make the School Services available in accordance with its standard operational practices. Capti may update, enhance, modify, or discontinue particular features or functionality of the School Services from time to time. Capti will use commercially reasonable efforts not to materially reduce the core functionality of paid School Services identified in the applicable Order or in Capti’s then-current documentation for those School Services during the then-current Order term, except where reasonably necessary for legal, security, technical, or operational reasons.

The School Services are educational tools intended to support instruction, assessment, and administration. They do not replace professional educational judgment or independent review by teachers, administrators, or other qualified personnel.

9. Orders, Accounts, and Authorized Users

Access to School Services may require an Order, an account, or both. The applicable Customer is responsible for its Authorized Users and for compliance with these Terms by anyone accessing the School Services through the Customer’s accounts or credentials.

You must provide accurate and complete account information and keep that information reasonably current.

You are responsible for maintaining the confidentiality of login credentials assigned to you and for all activities that occur through your account.

A Customer may permit only its Authorized Users to access and use the School Services, and only up to any applicable usage limits, seat limits, or other restrictions set forth in the applicable Order or account arrangement.

If you are an administrator or other person with authority over a Customer account, you are responsible for managing user access permissions in a manner consistent with the Customer’s rights and obligations under the applicable Order and these Terms. Capti is not responsible for actions taken by Customer administrators or Authorized Users within the permissions, settings, or access rights assigned by or on behalf of the Customer.

Authorized Users access the School Services under the Customer’s account rights and do not thereby amend or supersede the Customer’s separate agreements with Capti.

10. Licensed Scope and Overage Use

If the applicable Order or account arrangement includes a limit on Authorized Users, seats, usage volumes, or other measurable entitlements, the School Services may be used only within those limits unless otherwise agreed in writing.

If the number of Authorized Users or the Customer’s actual use exceeds the contracted limits, Capti may notify the Customer and work in good faith with the Customer to address the overage, including by issuing a supplemental order, invoice, or true-up for the excess use.

Capti will provide reasonable detail supporting any claimed overage upon request. The Customer may raise any good-faith dispute about the claimed overage within thirty (30) days after notice, and the parties will work together promptly to resolve the issue.

11. Customer Responsibilities

You are responsible for using the School Services in compliance with these Terms, the applicable Order, and applicable laws.

If you use the School Services through or on behalf of a school, district, or other educational institution, you are also responsible for complying with the policies and requirements of that institution that apply to your use of the School Services.

The Customer is responsible for:

• designating and managing its Authorized Users;
• obtaining any permissions, consents, or internal approvals it determines are necessary for its use of the School Services;
• maintaining the security of its own systems, devices, and credentials used to access the School Services; and
• using the School Services only for authorized educational and administrative purposes.

12. School Services Restrictions

In addition to the restrictions in Part A, you may not, and may not permit any third party to:

• license, sublicense, sell, resell, rent, lease, outsource, time-share, or otherwise make the School Services available to any person except Authorized Users as expressly permitted under the applicable Order;
• use the School Services to develop, train, benchmark, or support a competing product or service;
• circumvent or exceed any account limitations, seat restrictions, access controls, or usage parameters of the School Services;
• access or use the School Services in a manner that could damage, disable, overburden, or impair the School Services or interfere with any other user’s access or use;
• access the School Services by any means other than the interfaces and methods expressly authorized by Capti; or
• use the School Services for unlawful, infringing, fraudulent, or misleading purposes.

13. Customer Data

As between Capti and the applicable Customer, the Customer retains its rights in Customer Data, including any Student Data contained therein.

The Customer is responsible for the accuracy, quality, legality, and means of obtaining Customer Data, and for ensuring that it has all rights and permissions necessary for Capti to process Customer Data in connection with the School Services.

Capti will process Customer Data, including Student Data, in accordance with these Terms, the Privacy Policy, and applicable law. Subject to these Terms, the applicable Order, Capti’s then-current Privacy Policy, and any other written agreement between Capti and the Customer, the Customer grants Capti a non-exclusive, worldwide, limited right to host, store, process, transmit, display, modify, and otherwise use Customer Data solely as necessary to provide, maintain, support, secure, and operate the School Services for the Customer and its Authorized Users, and to improve the School Services only through the use of de-identified and aggregated data as permitted by applicable law, the Privacy Policy, and any applicable written agreement between Capti and the Customer.

Capti may use de-identified and aggregated data derived from the School Services for internal analytics, security, service improvement, product performance evaluation, benchmarking, and reporting purposes, but only to the extent permitted by applicable law and any applicable written agreement between Capti and the Customer, and only if such data does not identify, and cannot reasonably be used to identify, the Customer or any individual.

14. Service Providers

Capti may use affiliates, contractors, hosting providers, subprocessors, and other service providers to provide, maintain, support, secure, and improve the School Services, subject to applicable confidentiality obligations, Capti’s Privacy Policy, any applicable written agreement between Capti and the Customer, and applicable law.

15. Customer Data License Limitations

Except as expressly permitted in these Terms, the applicable Order, Capti’s Privacy Policy, or another written agreement between Capti and the Customer, Capti will not sell Customer Data or disclose Customer Data to third parties except as necessary to provide the School Services, comply with law, protect the School Services, or enforce Capti’s rights.

Nothing in these Terms gives Capti ownership of Customer Data.

Certain School Services may allow authorized educators, administrators, or other Authorized Users designated by the Customer to access, review, and use recordings, transcripts, scores, reports, or other outputs generated through the School Services, but only as authorized by the applicable Customer arrangement and applicable law. For the avoidance of doubt, the Customer and its Authorized Users may prepare, copy, display, and present reports, charts, and other outputs generated by the School Services for the Customer’s internal educational and administrative purposes, including presentations to school boards, administrators, or other internal stakeholders.

16. Customer-Provided Content and Materials

If the School Services permit you or any Authorized User to upload, submit, post, transmit, or otherwise provide content or materials for use with the School Services, you represent and warrant that you have all rights necessary to do so and that such content or materials do not infringe or violate any third-party rights or applicable law.

Capti may remove or disable access to any content or materials that violate these Terms, infringe third-party rights, create a security risk, or may expose Capti or others to liability.

17. Monitoring and Enforcement

Subject to applicable law, Capti may monitor use of the Public Site and School Services as reasonably necessary to protect the security, integrity, availability, and lawful operation of the Public Site and School Services, to enforce these Terms, and to prevent fraud, misuse, or unauthorized access.

18. Assessment Integrity

Assessment content, items, prompts, passages, scoring methodologies, rubrics, scoring algorithms, and related materials made available through the School Services (collectively, “Assessment Materials”) are the confidential and proprietary information of Capti and are protected by intellectual property and other applicable laws. All rights in Assessment Materials are reserved by Capti.

The Customer and its Authorized Users may not copy, reproduce, distribute, disclose, publish, transmit, or otherwise make available any Assessment Materials to any person or entity except as expressly permitted in writing by Capti or as strictly necessary for authorized use of the School Services in accordance with these Terms and the applicable Order. The Customer will take reasonable precautions to prevent unauthorized access to or disclosure of Assessment Materials, including implementing appropriate administrative controls for Authorized Users who have access to assessment content.

The Customer is solely responsible for administering assessments in accordance with Capti’s then-current administration guidelines, instructions, and documentation as made available by Capti from time to time. The Customer is solely responsible for establishing and maintaining proper testing conditions, including appropriate supervision, proctoring, and environmental controls, and for taking reasonable steps to prevent and detect cheating, collusion, unauthorized assistance, or other irregularities during assessment administration. Capti may make administration guidelines available through the School Services, the Public Site, or other reasonable means, and the Customer is responsible for ensuring that its Authorized Users are aware of and comply with those guidelines.

If Capti reasonably determines that the integrity of any assessment or assessment results has been or may have been compromised by improper administration, unauthorized access to assessment content, cheating, or any other irregularity attributable to the Customer or its Authorized Users, Capti may, in its sole discretion, invalidate the affected assessment results and notify the Customer accordingly. Capti will have no liability to the Customer or any Authorized User arising from or related to any such invalidation.

Capti is not responsible for, and expressly disclaims any liability arising from, assessment results that are inaccurate, invalid, or otherwise affected by the Customer’s failure to administer assessments in accordance with Capti’s guidelines, by improper testing conditions, or by cheating or other irregularities within the Customer’s reasonable control. The Customer’s sole remedy in connection with any disputed assessment result is to contact Capti and request review in accordance with Capti’s then-current support procedures.

19. Automated Features and Scoring

Certain School Services include automated scoring, analytics, reporting, and artificial intelligence or machine learning features, including automated scoring of student responses and AI-assisted generation of assessment content (“Automated Features”). Automated Features are designed to support professional educator and administrator judgment, not to replace it. Educators, administrators, and other qualified personnel remain solely responsible for reviewing, interpreting, and acting upon any scores, reports, analytics, or other outputs generated by Automated Features.

Automated Features may produce errors, inconsistencies, or unexpected results. Capti does not warrant or guarantee the accuracy, completeness, or reliability of any output produced by Automated Features, and expressly disclaims any such warranty to the fullest extent permitted by applicable law. The Customer acknowledges that Automated Features are tools to inform, not to determine, educational decisions.

No high-stakes educational decision, including but not limited to decisions regarding student placement, promotion, retention, graduation, or intervention eligibility, should be made solely on the basis of outputs generated by Automated Features without independent review and professional judgment by a qualified educator or administrator. Capti will have no liability for any educational decision made by the Customer or any Authorized User, whether or not that decision was informed in whole or in part by outputs generated by Automated Features.

To the extent the School Services include assessment content or other materials generated with the assistance of artificial intelligence, Capti may apply internal review processes prior to making such content available through the School Services; however, Capti makes no representation or warranty regarding the nature, scope, or adequacy of any such review. Capti does not warrant that AI-generated content is free from error, bias, or inaccuracy, and the Customer is solely responsible for determining whether any such content is suitable for its intended educational purposes and population. The Customer should independently review AI-generated assessment items and other AI-generated content before use and should not rely on such content without applying its own professional judgment.

20. Professional Development Services

Capti may provide training sessions, implementation support, data review sessions, coaching, onboarding assistance, and other professional development services to Customers as described on the Public Site or in an applicable Order (“Professional Development Services”). The scope, format, timing, and fees, if any, applicable to Professional Development Services will be as set forth in the applicable Order or as otherwise agreed in writing between Capti and the Customer.

Professional Development Services are provided solely for the Customer’s internal educational and administrative purposes. Professional Development Services are informational and training in nature and do not constitute professional, legal, clinical, or educational therapy advice. Capti makes no representation or warranty that Professional Development Services will produce any particular instructional, academic, or administrative outcome, and any results will depend substantially on the Customer’s own implementation, practices, and decisions.

The Customer is responsible for ensuring appropriate participation by its personnel in any scheduled Professional Development Services, including coordinating the availability of relevant staff and providing Capti with reasonable access to the Customer’s environment and personnel as necessary for delivery. Capti’s ability to deliver Professional Development Services as scheduled is contingent on the Customer’s timely cooperation and the availability of appropriate personnel and technical resources. If the Customer fails to fulfill its cooperation obligations or cancels or reschedules a session with less than five (5) business days’ advance written notice, Capti will have no obligation to reschedule at no additional charge, and any applicable fees for the cancelled or missed session will remain due and payable in accordance with the applicable Order.

To the extent that Professional Development Services involve access to, review of, or discussion of Customer Data, including Student Data, such access and use will be subject to these Terms, the applicable Order, and Capti’s Privacy Policy, in the same manner as Customer Data accessed or processed through the School Services.

21. Confidentiality

For purposes of these Terms, “Confidential Information” means non-public business, technical, operational, or commercial information disclosed by one party to the other that is designated as confidential or that reasonably should be understood to be confidential based on the nature of the information and the circumstances of disclosure.

Each party will protect the other party’s Confidential Information using at least reasonable care and will use the other party’s Confidential Information only as necessary to exercise its rights and perform its obligations under these Terms, the applicable Order, or another applicable written agreement.

Confidential Information does not include information that:

• is or becomes publicly available through no wrongful act or omission of the receiving party;
• was lawfully known to the receiving party without restriction before disclosure;
• is lawfully received from a third party without breach of any confidentiality obligation; or
• is independently developed without use of the disclosing party’s Confidential Information.

A receiving party may disclose Confidential Information if required by law, subpoena, court order, or governmental authority, provided that, to the extent legally permitted, the receiving party gives the disclosing party prompt notice so the disclosing party may seek protective treatment.

22. Fees and Payment

The Customer will pay all fees and charges set forth in the applicable Order in accordance with the payment terms stated in that Order.

If an Order does not specify a payment deadline, invoiced amounts are due within thirty (30) days after the invoice date.

Except as expressly stated otherwise in these Terms or the applicable Order, fees are non-cancelable and non-refundable.

If the Customer fails to pay any amount when due, and such amount is not subject to a good-faith dispute communicated in writing to Capti within fifteen (15) days after the invoice date identifying with reasonable specificity the basis for the dispute, Capti may, after providing notice under Section 34 and a reasonable opportunity to cure (not less than ten (10) days), suspend access to the affected School Services until the overdue amount is paid. Any portion of an invoice not disputed in accordance with this Section will be deemed accepted and payable. Capti may continue to exercise any other rights or remedies available under these Terms or applicable law.

23. Taxes

Fees and charges for the School Services do not include taxes unless expressly stated otherwise in the applicable Order.

The Customer is responsible for all sales, use, excise, value added, goods and services, withholding, and similar taxes, duties, or charges imposed by any governmental authority in connection with the School Services, other than taxes based on Capti’s net income.

If the Customer claims an exemption from any such taxes, the Customer will provide appropriate exemption documentation upon request.

24. Suspension

Capti may suspend access to all or any part of the School Services if Capti reasonably determines that:

• you or any Authorized User are using the School Services in violation of these Terms or applicable law;
• suspension is necessary to prevent harm to the School Services, other users, or third parties;
• there is a security incident or other threat affecting the School Services;
• suspension is required by law or at the direction of a governmental authority; or
• the Customer has failed to pay undisputed fees after notice under Section 34 and an opportunity to cure.

Where practicable under the circumstances, Capti will use reasonable efforts to provide advance notice of any suspension and to limit its scope and duration. Capti’s good-faith determination regarding the necessity, scope, and duration of any suspension will be presumed reasonable and will not be subject to challenge except in the case of Capti’s gross negligence or willful misconduct.

25. Term and Termination

These Terms will remain in effect with respect to your use of the Public Site for so long as you access or use the Public Site.

With respect to School Services, these Terms will remain in effect for so long as the applicable Customer has an active Order or account arrangement with Capti, and thereafter for so long as you or the Customer continue to access or use the School Services.

Either party may terminate a particular Order or the affected School Services as permitted in the applicable Order or another signed written agreement between Capti and the Customer.

If no such written agreement addresses termination, then:

• either party may terminate the affected School Services for material breach by the other party if the breach remains uncured thirty (30) days after notice under Section 34, except that nonpayment may be cured within ten (10) days after notice under Section 34; and
• Capti may terminate or suspend access immediately if continued access would create a security risk, violate law, or materially impair the School Services.

Upon expiration or termination of the School Services, your right to access and use the affected School Services will end, and you and the applicable Customer must cease using them, except as otherwise expressly permitted in writing by Capti. The Customer and its Authorized Users must immediately stop using any related credentials and access methods, and the Customer will remain responsible for obligations incurred before termination and for misuse of accounts or credentials to the extent caused by the Customer’s failure to disable access within its reasonable control.

Unless otherwise stated in the applicable Order or another written agreement between Capti and the Customer, Capti may retain and delete Customer Data in accordance with its standard retention practices and Privacy Policy, and may delete Customer Data following termination after any applicable retrieval period. The Customer may export or retrieve Customer Data prior to termination using the export functionality available within the School Services, or as otherwise described in the Privacy Policy.

Any post-termination access to or deletion of Customer Data will also be governed by the applicable Order, Capti’s Privacy Policy, and any other written agreement between Capti and the Customer.

26. Changes to School Services and These Terms

Capti may modify the School Services from time to time.

Capti may also revise these Terms from time to time. If Capti makes material changes, Capti will use commercially reasonable efforts to provide notice by posting the updated Terms on the Public Site or through the School Services, or by other reasonable means.

Changes to these Terms will become effective as of the stated effective date. Your continued access to or use of the Public Site or School Services after the effective date of revised Terms constitutes acceptance of the revised Terms.

Any revision to these Terms will apply subject to any conflicting provision in an applicable signed Order, data processing agreement, or other written agreement between Capti and the Customer.

27. Accessibility

Capti strives to make the School Services accessible in accordance with WCAG 2.1 Level AA and Revised Section 508 standards as aspirational targets, though Capti does not warrant or guarantee that the School Services will meet any particular accessibility standard at all times. A current Accessibility Conformance Report (VPAT) is available to Customers upon request.

Part C. General Terms

28. Attorneys’ Fees

In any action, proceeding, or arbitration to enforce or interpret these Terms or arising out of or related to the Public Site or the School Services, the substantially prevailing party will be entitled to recover its reasonable attorneys’ fees, expert fees, and costs from the other party, including fees and costs incurred in any appeal or post-judgment proceeding. This entitlement is in addition to any other relief or remedy to which the substantially prevailing party may be entitled under these Terms or applicable law.

29. Privacy

Capti’s collection, use, storage, disclosure, and other processing of personal information are described in Capti’s Privacy Policy, as updated from time to time, and, where applicable, in any data processing agreement or other written agreement between Capti and the applicable Customer.

30. Warranty Disclaimer

Except as expressly stated in a signed written agreement between Capti and the applicable Customer, the School Services are provided on an “as is” and “as available” basis.

To the fullest extent permitted by applicable law, Capti disclaims all warranties, whether express, implied, statutory, or otherwise, including any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, results, completeness, uninterrupted availability, or error-free operation.

Capti does not warrant that the School Services will improve any student skill, capability, or outcome, or that the Public Site or School Services will always be available, uninterrupted, timely, secure, or free from defects.

31. Limitation of Liability

To the fullest extent permitted by applicable law, neither party will be liable to the other for any indirect, incidental, consequential, special, exemplary, or punitive damages, or for any loss of profits, revenues, goodwill, data, or business interruption, whether arising in contract, tort, statute, or otherwise, arising out of or related to these Terms, the Public Site, or the School Services, even if advised of the possibility of such damages.

To the fullest extent permitted by applicable law, Capti’s aggregate liability arising out of or related to these Terms, the Public Site, or the School Services, whether arising in contract, tort, statute, or otherwise, will not exceed the total amount paid or payable by the applicable Customer to Capti for the affected School Services under the applicable Order during the twelve (12) months preceding the event giving rise to the claim.

The limitations in this Section do not apply to:

• a party’s fraud or willful misconduct;
• the Customer’s payment obligations; or
• either party’s indemnification obligations under Section 32.

32. Indemnification

Capti will defend the applicable Customer against any third-party claim alleging that the School Services, as provided by Capti and used by the Customer in accordance with these Terms and the applicable Order, infringe or misappropriate that third party’s United States intellectual property rights, and Capti will pay any damages finally awarded or amounts agreed in settlement by Capti resulting from such claim.

Capti will have no obligation under this Section to the extent the claim arises from:

• Customer Data or other materials provided by or on behalf of the Customer or any Authorized User;
• use of the School Services in combination with products, services, data, or processes not provided by Capti, if the claim would not have arisen but for that combination;
• modification of the School Services by anyone other than Capti; or
• use of the School Services in violation of these Terms, the applicable Order, or applicable law.

If the School Services become, or in Capti’s opinion are likely to become, subject to an infringement claim, Capti may, at its option and expense:

• procure the right for the Customer to continue using the affected School Services;
• replace or modify the affected School Services so that they become non-infringing without materially reducing their core functionality; or
• terminate the affected School Services and refund any prepaid fees for the terminated portion of the then-current term.

This Section states Capti’s sole liability, and the Customer’s exclusive remedy, for any claim covered by this Section.

The Customer will defend, indemnify, and hold harmless Capti and its affiliates, officers, directors, employees, and agents from and against any third-party claim, damage, liability, loss, cost, or expense, including reasonable attorneys’ fees, arising out of or related to:

• Customer Data or content provided by or on behalf of the Customer or any Authorized User;
• the Customer’s or any Authorized User’s use of the Public Site or School Services in violation of these Terms, the applicable Order, or applicable law; or
• the Customer’s breach of these Terms or any applicable written agreement with Capti.

A party seeking indemnification under this Section must give prompt notice of the claim, permit the indemnifying party to control the defense and settlement of the claim, and provide reasonable cooperation at the indemnifying party’s expense; provided, however, that the failure to give prompt notice will not relieve the indemnifying party of its obligations under this Section except to the extent the indemnifying party is materially prejudiced by such failure. The indemnifying party may not settle any claim in a manner that admits fault or imposes ongoing obligations on the indemnified party without the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.

33. Electronic Communications

By using the Public Site or School Services, you consent to receive communications from Capti electronically, including through email, in-product notices, or postings on the Public Site, where permitted by applicable law.

34. Notice

Except as otherwise required by law or expressly stated in these Terms, Capti may provide notices under these Terms by email, by posting on the Public Site or School Services, or by other reasonable electronic means.

Notices from Capti will be deemed given:

• if sent by email, when sent to the most recent email address associated with the applicable account, provided that Capti does not receive a bounce-back or other delivery failure notice;
• if posted on the Public Site or School Services, on the date of posting; and
• if sent through another electronic means, on the date transmitted.

You will send legal notices to Capti at:

Charmtech Labs LLC
Attn: Legal Department
PO Box 896
Buffalo, NY 14205
Email: info@capti.com

Notices from you to Capti will be deemed given when actually received by Capti.

35. Governing Law and Venue

These Terms, and any dispute arising out of or relating to these Terms, the Public Site, or the School Services, will be governed by the laws of the State of New York, without regard to its conflict of laws principles.

Subject to any contrary provision in an applicable signed written agreement between Capti and a Customer, the state and federal courts located in Erie County, New York will have exclusive jurisdiction over any dispute arising out of or relating to these Terms, the Public Site, or the School Services, and each party consents to the personal jurisdiction and venue of those courts.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS, THE PUBLIC SITE, THE SCHOOL SERVICES, OR ANY TRANSACTION CONTEMPLATED HEREBY. This waiver applies to any claim or cause of action, whether based on contract, tort, or any other legal theory. Each party certifies that no representative of the other party has represented that such party would not seek to enforce this waiver. This waiver is a material inducement for Capti to enter into these Terms.

36. Dispute Resolution and Arbitration

Informal Resolution. Before initiating any arbitration or other legal proceedings, each party agrees to attempt to resolve the dispute informally. The party asserting the dispute must send written notice to the other party describing the dispute in reasonable detail and the relief requested. The parties will have thirty (30) days from the date of that notice to attempt to resolve the dispute through good-faith negotiation. Arbitration may not commence until this thirty (30) day period has expired or the other party has affirmatively declined informal resolution in writing, whichever occurs first.

Binding Arbitration. Except as expressly provided in this Section, any dispute, claim, or controversy arising out of or relating to these Terms, the Public Site, or the School Services, or the breach, termination, enforcement, interpretation, or validity thereof (collectively, “Disputes”), will be resolved exclusively by final and binding arbitration rather than in court. This agreement to arbitrate applies to all Disputes regardless of whether the claim arises in contract, tort, statute, fraud, misrepresentation, or any other legal theory.

Arbitration Rules and Administration. Arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules then in effect (available at www.adr.org), as modified by this Section. The arbitration will be conducted by a single neutral arbitrator. If the parties cannot agree on an arbitrator, the arbitrator will be appointed in accordance with the AAA Commercial Arbitration Rules. The arbitrator will have authority to rule on all threshold issues, including the arbitrability of any claim.

Location. Unless the parties agree otherwise in writing, arbitration proceedings will be conducted in Erie County, New York. The arbitrator may permit remote participation by any party or witness where appropriate.

Discovery. Discovery in arbitration will be limited to the following: each party may take up to three (3) depositions of fact witnesses and may request up to twenty-five (25) document requests. Any additional discovery requires the arbitrator’s express approval upon a showing of substantial need. The arbitrator will have authority to resolve all discovery disputes. The parties agree that limiting discovery in this manner is reasonable and necessary to preserve the speed and cost-effectiveness of arbitration.

Costs. Each party will bear its own attorneys’ fees and costs in connection with any arbitration, subject to the arbitrator’s authority to award fees and costs to the prevailing party as provided in Section 28 of these Terms. AAA filing fees and arbitrator compensation will be allocated in accordance with the AAA Commercial Arbitration Rules, except that Capti will not be required to advance any fees or costs on behalf of the Customer.

Arbitrator’s Decision. The arbitrator’s decision will be final and binding on both parties. The arbitrator may award the same relief that a court could award, including injunctive or declaratory relief, but only to the extent necessary to provide relief to the individual claimant and only in that claimant’s individual capacity. Judgment on the arbitration award may be entered in any court of competent jurisdiction.

CLASS ACTION WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY AGREES THAT ANY DISPUTE, CLAIM, OR CONTROVERSY SUBJECT TO ARBITRATION UNDER THIS SECTION MAY ONLY BE BROUGHT ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, PRIVATE ATTORNEY GENERAL, OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING. IF THIS CLASS ACTION WAIVER IS FOUND TO BE UNENFORCEABLE FOR ANY REASON, THEN THE ENTIRETY OF THIS SECTION 36 WILL BE DEEMED NULL AND VOID, AND THE PARTIES AGREE THAT ANY CLASS, COLLECTIVE, OR REPRESENTATIVE CLAIMS WILL PROCEED IN A COURT OF COMPETENT JURISDICTION AS PROVIDED IN SECTION 35, AND NOT IN ARBITRATION.

Exceptions. Notwithstanding the foregoing, either party may: (a) bring an individual claim in small claims court if the claim qualifies under that court’s jurisdictional limits and is brought on an individual, non-class basis; and (b) seek emergency or preliminary injunctive or other equitable relief in a court of competent jurisdiction as necessary to protect its intellectual property rights, Confidential Information, Assessment Materials, or proprietary technology pending the outcome of arbitration, without waiving its right to arbitration on the merits of any underlying claim. Capti’s right to seek injunctive or other equitable relief is in addition to, and not in lieu of, any other rights or remedies available to Capti under these Terms or applicable law.

Opt-Out. You may opt out of this agreement to arbitrate by sending written notice of your decision to opt out to Capti at the address set forth in Section 37 within thirty (30) days of first accepting these Terms. Your notice must include your name, the Customer name (if applicable), and a clear statement that you wish to opt out of arbitration. If you opt out, all Disputes will be resolved exclusively in the state or federal courts located in Erie County, New York, as provided in Section 35. Opting out of arbitration has no effect on any other provision of these Terms. If you do not opt out within thirty (30) days, you will be deemed to have agreed to this Section in its entirety.

Confidentiality. All arbitration proceedings, submissions, decisions, and awards will be kept confidential to the fullest extent permitted by law, except as necessary to obtain court confirmation of an arbitration award or to enforce an arbitration agreement or award.

37. Assignment

You may not assign or transfer these Terms, or any rights or obligations under these Terms, without Capti’s prior written consent, except that a Customer may assign these Terms together with an applicable Order to a successor in connection with a merger, reorganization, or sale of substantially all of its assets, provided that the assignee agrees in writing to be bound by these Terms and any applicable written agreement with Capti.

Capti may assign or transfer these Terms, in whole or in part, without restriction, including to an affiliate or in connection with a merger, reorganization, or sale of assets.

Any attempted assignment in violation of this Section is void.

38. Force Majeure

Neither party will be liable for any delay or failure to perform under these Terms, except for payment obligations, to the extent caused by events beyond that party’s reasonable control, including natural disasters, acts of government, war, terrorism, labor disputes, internet or telecommunications failures, or failures of third-party hosting or utility providers.

39. No Third-Party Beneficiaries

These Terms are for the benefit of you and Capti only and do not create any third-party beneficiary rights, except as expressly provided in Section 32.

40. Waiver and Severability

A party’s failure to enforce any provision of these Terms will not constitute a waiver of that provision or any other provision.

If any provision of these Terms is held to be invalid, illegal, or unenforceable, that provision will be enforced to the maximum extent permitted by law and, if necessary, reformed to the minimum extent necessary to make it enforceable, and the remaining provisions will remain in full force and effect.

41. Entire Agreement

These Terms, together with the Privacy Policy and any applicable signed Order, data processing agreement, or other written agreement between Capti and the applicable Customer, constitute the entire agreement between the parties with respect to the subject matter addressed herein and supersede all prior or contemporaneous understandings on that subject matter.

42. Feedback

If the Customer or any Authorized User provides Capti with suggestions, ideas, enhancement requests, recommendations, corrections, or other feedback regarding the Public Site, the School Services, or any other Capti product or service (“Feedback”), the Customer hereby assigns, and shall cause its Authorized Users to assign, to Capti all right, title, and interest in and to such Feedback, including all intellectual property rights therein, on a worldwide, irrevocable, perpetual, royalty-free basis. This assignment is unconditional and requires no further act by either party to be effective.

Capti may use, disclose, reproduce, license, distribute, commercialize, and otherwise exploit any Feedback for any purpose, including incorporating Feedback into the School Services or other Capti products and services, without any obligation of compensation, attribution, notice, or approval to or from the Customer or any Authorized User.

Feedback is not Confidential Information of the Customer, and Capti has no confidentiality obligation with respect to any Feedback. The Customer represents and warrants that it has all rights necessary to provide any Feedback it or its Authorized Users submit, and that such Feedback does not infringe or violate the rights of any third party.

43. Survival

Any provision of these Terms that by its nature should survive termination or expiration will survive, including Sections 2, 3, 7, 12, 13, 15, 18, 19, 21 through 23, 25, 28 through 32, 34 through 37, and 39 through 44, as well as any accrued payment obligations, indemnification obligations, confidentiality obligations, restrictions on use, obligations to cease use of the School Services, and obligations relating to Customer Data, account security, and unauthorized use.

44. Contact Information

If you have questions about these Terms, you may contact Capti at:

Charmtech Labs LLC
PO Box 896
Buffalo, NY 14205
888-533-7884
info@capti.com