Welcome to Kapitalwise

Please read these Standard Terms of Use (“Terms”) carefully. By using the Service (defined below) or signing up for an account, you agree to these Terms, which will result in a legal agreement between you and Kapitalwise Inc.(“Company,” “we,” or “us”). If you are agreeing to these Terms and Conditions, not as an individual, but on behalf of your company, a government, or another entity for which you are acting, then Customer shall mean your entity, and you represent and warrant that you have the authority to bind such entity to these Terms and Conditions. These Terms and Conditions, together with all Order Forms entered between Customer and Kapitalwise (or their respective Affiliates), constitute the “Agreement” between the parties.

Kapitalwise offers a cloud base customer experience automation and marketing platform (the “Platform”) that allows you to manage your contacts, to create, send, and manage marketing campaigns, advertisements, SMS, and push notifications (each a “Campaign,” and collectively, “Campaigns”), and to create web pages and websites and automate user experience among other things.

The App is part of the platform operated by Kapitalwise and is offered through our websites, including https://www.kapitalwise.com, https://app.kapitalwise.com, operated or controlled by us ( “Kapitalwise Site,” “App”, the “Service”). Kapitalwise has employees, officers, directors, independent contractors, and representatives (“Kapitalwise Team”). A “Contact” is any person you, a Customer, may contact through our Service. In other words, a Contact is anyone on a Customer's distribution list about whom a Customer has given us information or is anyone who has otherwise interacted with a Customer via the Service. For example, if you are a Customer, a subscriber to your email marketing campaigns, or a client to your Website or Landing Page would be considered a Contact.

These Terms(the “Agreement”), define the terms and conditions under which you’re allowed to use the Service by following the Agreement describe how we’ll treat your account and the data we collect and process about you, your users, and Contacts and customers while you’re a Customer. If you don’t agree to these Terms, you must immediately discontinue your use of the Service. If you have any questions about our Terms, contact us at support@kapitalwise.com.

Eligibility: To use the Service, you must be at least eighteen (18) years old and able to enter into contracts. Agree to these Terms and the other terms and conditions linked in these Terms that form part of the Agreement and you confirm that you have provided complete and accurate information during the signup. Using the Service, you warrant that you have read the above requirements, and you won’t use the service in any way that violates any laws or regulations. You also understand that these warrants are legally binding and enforceable promises. Kapitalwise owns the rights to limit the usage, suspend or terminate your account at any time.

             

Restrictions and Responsibilities: Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation, or data related to the Services; modify, translate, or create derivative works based on the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third, or remove any proprietary notices or labels.  With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

Further, the Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement

Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor the Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

Confidentiality and Proprietary Rights: The customer shall own all rights, titles, and interests in and to the Contact’s Data.  Company shall own and retain the all right title and interest in and to (a) the Services and Software, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing. The Company owns any data based on or derived from the Contact’s Data and provided to Contact’s as part of the Services.

The Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Contact’s Data and data derived therefrom), and  Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in any form in connection with its business. No rights or licenses are granted except as expressly set forth herein.  No Contact Specific Data provided by the Customer to the Company will be kept, monitored, or used by Company without the expressed permission of the Customer as it pertains to this Agreement and Service.  

Termination of Your Account:  You or the Company may terminate the Agreement at any time and for any reason. The Company also holds the right to terminate and remove all the data pertaining to your Account, including the Contact data, in case your account is inactive for more than 6 months. In any case Company will not reimburse or refund the amount that was already paid to the Company. Once your account is terminated, you acknowledge and agree that we may permanently delete your account and all the data associated with it, including your Campaigns.

Warranty and Disclaimer: Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Indemnify: Customer will hold Company harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement.  If due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

Data Protection: Company and Customer shall comply with their respective obligations under Data Protection Laws in connection with this Agreement. Personal Data is Confidential Information. The Company shall, in respect of any Personal Data Processed pursuant to this Agreement: (a) comply with the requirements of any Data Protection Laws which relate to the jurisdiction(s) from which and for which the relevant obligations of the Company under this Agreement are to be performed; (b) not disclose or provide access to Personal Data without the written authority of Customer (except for the purposes of fulfilling its obligations under this Agreement); (c) ensure that all reasonable steps are taken to ensure the reliability of the Company staff and professional advisers, which will Process Personal Data (in particular, performing appropriate background screening checks, staff training and disciplinary measures in case of non-compliance) and limit such Processing to those staff and professional advisers who have a need to know or access Personal Data for the purposes of performing the Company’s obligations under the Agreement; (d) ensure that any Company staff and professional advisers that Process Personal Data are under a written legal duty or obligation not to Process Personal Data except in performing their duties pursuant to this Agreement; (e) segregate (logically or physically) Personal Data held and Processed pursuant to this Agreement  from its own data and from any data of its other customers; and (f) not retain Personal Data for any longer than is necessary for the purpose of fulfilling its obligations under this Agreement.  The Company shall not, without the Customer’s prior written consent or written instructions: (a) transfer Personal Data from one country to another country; and/or (b) remotely access Personal Data from a country other than the country in which the Personal Data is stored at the Company Site. Company shall ensure that, in respect of any masked Personal Data provided by Customer that does not identify an individual, the Company shall not attempt to “re-identify” any such masked data fields, and in the event, the Company receives any unmasked Personal Data, it shall as soon as reasonably practicable notify the Customer.

Changes: The Company may change any of the Terms in this Agreement as required. The Company will post the most updated version of the Agreement on the Kapitalwise Site. The Company may not send any notice regarding such changes. As long as the Customer continues using the service, the new Terms will be effective immediately upon posting on the effective date indicated in the new Terms, as applicable, and apply to any continued or new use of the Service.

Subscription Plans and Payment: your monthly payment for the Service will be calculated based on the number of Contacts and other additional features usage.  Kapitalwise Paid Plan offers different pricing and feature options and has varying usage limits. You will be paying in advance for each month based on the number of Contacts and the Pricing Tier, which is available on the Kapitalwise Site when you signed up. Any additional usage cost for that month will be billed as part of the next month's bill. You will be billed according to the Paid Plan that you had subscribed to during the signup. Kapitalwise will not adjust your plan, offer discounts or overcharge you even when the Paid Plan pricing offered to other Customers changes in the future.

Free Plans: Kapitalwise offers Free Plans for Customers for a limited time. Details of such Free Plans, including the Services offered under limited Free Plans, are available on the Kapitalwise Site. Services and features offered under limited Free Plans will change from time to time, and the Company will not notify you of such changes. If you decided to sign up for Free Plans, you agree with such changes, and if not, please discontinue using the Service immediately.

Additional Features: Kapitalwise offers a variety of additional features, including Content, AI Signals, Dedicated IP Addresses for email sending, and consulting services which will be charged as additional fees. These features are not included in the Free Plans.

When you sign up for a Paid Plan, you agree to monthly recurring billing, starting on the date you sign up. Billing occurs on the first day of each month. Based on the day of your sign-up, you will be charged a prorated monthly charge for the first month. Payments are due on the first day of the month (“Pay Date”). If you exceed your usage limits for your Paid Plan, you’ll have to pay Additional Charges (as described above) for the prior billing cycle on or before the next Pay Date.

Refunds: We will not refund you under any circumstance. However, we may, at our sole discretion, offer a refund, discount, or credit.

Property and Feedback: The Customer retains the right to all the content submitted by the Customer through the Service. You represent and warrant that you have obtained the rights or own those content and will not violate any laws or third-party IP, privacy, or other terms governing those content. You may offer feedback, suggestions to improve features, comments, or reviews. You grant us the royalty-free rights to use, reproduce or publically display those feedbacks. You also understand that you will not be entitled to any compensation for feedback, comments, or suggestions.

No abuse: By accepting this Agreement, you promise that you will not use the Service to send spam emails or spam text messages. You also agree that you have attained explicit permission from all the Contacts to send and receive electronic communications. You also agree that you have read and understood the CAN-SPAM (https://www.fcc.gov/general/can-spam) rules and regulations and will not violate any such rules by using the Service. You also agree that you will not use the Service to distribute content that would promote any kind of threat of physical harm or hateful content. Kapitalwise may suspend or terminate your account if we determine, in our sole discretion, that you are either violated or have created content that might violate these rules in the future.

Independent contractors. Kapitalwise and Customer are independent contractors, and nothing in the Agreement creates an employment, partnership, or agency relationship between the parties or any Affiliate. Each party is solely responsible for the supervision, control, and payment of its personnel.

Assignment. Neither party may assign, delegate, or otherwise transfer the Agreement or any of its rights, duties or and obligations hereunder without the prior written consent of the other party; provided, however, in the event of the sale or transfer of substantially all of its assets, or a sale, merger or change of control, either party may assign any or all rights and obligations contained herein without consent. Both parties shall use commercially reasonable efforts to provide notice to the relevant party upon such assignment. Any assignment in violation of the foregoing will be null and void. The Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.

Severability. If any term or provision of the Agreement should be declared invalid by a court of competent jurisdiction or by operation of law, the remaining terms and provisions of the Agreement shall be unimpaired, and the invalid term or provisions shall be replaced by such valid term or provisions as comes closest to the intention underlying the invalid term or provision.

Jurisdictional Issues: Kapitalwise Service is controlled and operated in the United States of America and Canada. Kapitalwise Service may not be available to users outside the United States and Canada. We make no representation that the Services offered are appropriate or available for use in other locations, and access to them from territories where their content is illegal is prohibited. Those who choose to access the Service from locations outside the United State and Canada do so on their own initiative and are responsible for compliance with all applicable local laws. You may not use or export the materials in violation of the United States or Canada, or any other jurisdiction’s, export, re-export, or import laws or regulations.

Notice. Any notice or other communications required or permitted in the Agreement shall be in English and in writing and shall be deemed to have been duly given to a party (i) upon receipt, if delivered by hand or sent by a nationally recognized overnight delivery service, (ii) one (1) business day after sending by email or another electronic method that provides for confirmation of transmission (except that notices of termination or with respect to a dispute or indemnifiable claim may not be sent in this manner) or (iii) three (3) days after mailing by first-class certified mail, postage prepaid, in each case, to the following address (or such other address as a party may designate in accordance with this Section):

To: Kapitalwise Inc.

43 W 23rd Street

New York, NY, 10010

LIMITATION OF LIABILITY: NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.