Last Revised: October 3, 2018
his statement (“Terms”) governs the use of the Kapitus (“we”, “us”) websites located at:
www.kapitus.com and www.merchantcashadvance.com and any other site directing thereto, each a “Site” and collectively, the “Sites”. Accessing any of the sites listed, you agree to abide by these terms.
Kapitus may modify these Terms at any time without notice and such modification shall be effective immediately upon posting on a Site. As your next visit to a Site may be governed by different terms posted at this page, and you should review the terms on this page each time that you visit a Site.
1. Your Responsibility as a User You hereby affirm that you are over the age of 18 and are fully able to form a binding, legal agreement with KAPITUS. You assume all responsibility for your use of, or access to, the Sites, including your access to any Web Portal, Merchant Account, Sales Partner Account, Syndicate Investor Account, Site Content or User Content, and hereby waive all claims or causes of action against KAPITUS, its subsidiaries, affiliates and their respective officers, directors, employees, shareholders, agents and representatives in connection therewith.
2. Ownership Rights Any and all information, materials, images, software, photographs, articles, functions, text and other content solely provided by or on behalf of KAPITUS on any Site (collectively, “Site Content”) is the sole and exclusive property of KAPITUS, excluding any User Content (as defined below). The Sites and all of the Site Content, and the selection and arrangement thereof, are protected under the copyright laws and other intellectual property laws of the United States and other countries. KAPITUS reserves all rights, in and to the Sites and the Site Content, in which rights are not expressly granted herein. Unless otherwise noted, the KAPITUS trademark, the Kapitus name, KAPITUS abbreviation and all other trademarks, service marks, trade names, logos or other designations of source displayed on the Sites are the property of KAPITUS, its subsidiaries, affiliates or licensors. All third party trademarks, service marks, trade names, logos or other designations of source are the property of their respective owners. Nothing on any Site shall be construed as granting any license or right not expressly set forth herein. Any unauthorized use of a Site or any of the Site Content will terminate the permission or license granted herein and may violate applicable law. You will not alter, adapt or otherwise modify any part of the Sites or Site Content.
UNAUTHORIZED USE OF THIS WEBSITE OR ANY OF ITS CONTENT, DESIGN OR IMAGES COULD RESULT IN A CLAIM FOR DAMAGES AND/OR CONSTITUTE A CRIMINAL OFFENSE.
3. Access and Use of the Sites KAPITUS reserves the right, at its sole discretion, to restrict in whole or in part, your access and use of the Sites, any Site Content and any third party’s User Content at any time with or without notice for any or no reason.
4. Third Party Content KAPITUS may from time to time (a) link to other sites that we feel may be useful to you, and (b) post content to our Sites that is supplied by third parties (collectively “Third Party Content”). Third Party Content is not under the control of KAPITUS. KAPITUS makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of Third Party Content, any services accessible by hyperlink from our Sites, links contained in any Third Party Content, or any review, changes or updates to a third party web site or for third-party web sites that link to any of our Sites. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties in the Third Party Content are those of the respective author(s) or distributor(s) and not of KAPITUS. KAPITUS does not guarantee the merchantability or fitness for any particular purpose of Third Party Content. When leaving our Sites, you should be aware that these Terms no longer govern, and therefore, you should review the applicable terms and policies, including privacy and data gathering practices, of any third party sites. Additional disclaimers and limitation of liability are noted below.
5. Use of Information All information or other content conveyed or communicated by you to us as a contribution to any of the Sites (each, a “Submission”) will upon receipt be immediately and forever the property of KAPITUS. KAPITUS will not be required to treat any Submission as confidential and will not be liable for the use of any ideas (including without limitation, product, service or advertising ideas) and will not incur any liability as a result of any similarities that may appear in our future products, services or operations. KAPITUS shall have the right to use any content contained in any Submission for posting on any social media it so desires without acknowledging the source of that Submission. KAPITUS will have exclusive ownership without limitation of all present and future existing rights to Submissions of every kind and nature and will be entitled to use said Submissions for any commercial or other purpose whatsoever, without compensation to you or any other person sending Submissions. In making a Submission, you acknowledge that you are responsible for whatever material you submit, and you, not us, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.
6. User Content Except as set forth in Section 5 above, we may now or in the future permit the submission of text, files, images, photos, video, sounds, musical works, works of authorship, text postings and other materials and content by you and other users (“User Content”) on certain areas of our Sites and Forums.
The Sites, Forums and Web Portals are interactive and accessible to the public. By submitting or posting User Content, you understand and acknowledge that any materials, ideas or other communications you submit or post in any manner and for any reason will not be treated as confidential or proprietary and may be preserved, disclosed or removed from the Sites by KAPITUS at our sole discretion.
You shall be solely responsible for any User Content you submit or post and the consequences of submitting or posting it. With respect to any User Content you submit or post, you affirm, represent and warrant that: (a) you own or have the necessary licenses, rights, consents or permissions to use, and authorize KAPITUS to use, all patent, copyright, trade secret, trademark, and other proprietary rights to enable inclusion and use of User Content in the manner contemplated by the Sites and these Terms; and (b) you have the appropriate and necessary written consent, release or permission of each identifiable individual person or business in your User Content to use the name, likeness or other personal characteristics of each such identifiable individual or business (as applicable) to enable inclusion and use of such User Content in the manner contemplated by the Sites and these Terms.
As between you and KAPITUS, you shall retain all of your ownership rights in and to the User Content you submit or post to our Sites. However, by submitting or posting User Content to KAPITUS, you hereby grant KAPITUS a worldwide, non-exclusive, irrevocable, perpetual, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, edit, modify, translate, reformat, prepare derivative works based upon, display publicly, perform publicly and otherwise exploit (including but not limited to over the Internet, broadcast television, radio or any other uses or media), the User Content, in whole or in part, including future rights that KAPITUS (or its successor) may otherwise become entitled to that do not yet exist, as well as new uses, media, means and forms of exploitation throughout the universe exploiting current or future technology yet to be developed to the maximum extent permitted by applicable law.
You also hereby grant each user of the Sites a non-exclusive license to access your User Content through the Sites, and to use, access, reproduce, distribute, transmit, forward, display and perform such User Content, in whole or in part, to the extent permitted by the Sites under these Terms (the “User License”).
7. Posting User Content KAPITUS will have the right to accept, post, refuse, remove or delete any User Content for any or no reason (including User Content that KAPITUS reasonably considers to violate these Terms or to otherwise be illegal or objectionable). Any User Content submitted is subject to these Terms, any additional terms for a specific feature, as well as the following submission rules, to which you agree to adhere through your use of the Sites:
(a) You will not submit or post any content that is unlawful, harmful, tortious, defamatory, libelous, obscene, invasive of the privacy of another person, threatening, harassing, abusive, hateful, racist, infringing, pornographic, violent or otherwise objectionable or inappropriate as determined by KAPITUS in its sole discretion.
(b) You will not submit or post any content that contains personal information about any other individual, violates the privacy/publicity of any other individual or entity, or anything that you are under a contractual obligation to keep private or confidential.
(c) You will not impersonate any person or organization, including-without limitation-the personnel of KAPITUS. You will not forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content or other content transmitted through the Sites.
(d) You will not misrepresent an affiliation with another person or organization, nor will you submit or post any content that that infringes any copyright, trademark, patent, trade secret, or otherwise subject to intellectual property rights of a third party.
(e) You will not use any Site to harm minors in any way or to send any content that we deem in our sole discretion to be inappropriate for minors, offensive, or incompatible with the character or subject matter of the Site.
(f) You will not submit, post, upload, e-mail or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramidd schemes” or any other material that contains business solicitations of any type, including advertising a product or service, offering a product or service for sale, or directing readers to a location for more information about a product or service.
(g) You will not submit or post any software to any of the Sites, nor will you submit or post links to online locations or post files that do not comply with these Terms, and you will not submit or post any content that contains viruses, corrupted files, or any other similar software or programs that may adversely affect the operation or features of any of the Sites.
(h) You will not modify in any way any specifications, technology, or application codes provided to you by KAPITUS or as embedded in the User Content unless expressly authorized in writing by KAPITUS.
(i) You will not intentionally or unintentionally violate any applicable local, state, national or international law.
(j) You will not collect any personal information about other users.
(k) You will not share or transfer passwords or other access information with any other party, temporarily or permanently as applicable.
(l) You will not use any Site, Site Content or User Content in any way that harms KAPITUS or any user of KAPITUS.
(m) You will not use any Site in any manner that could overburden, or impair the Site (or the networks or systems connected to the Site).
(n) You will not use any device, software or instrumentality to interfere with the proper working of our Sites or disobey any requirements, procedures, policies or regulations of networks connected to the Sites.
(o) KAPITUS assumes no liability for any information removed from our Sites, and reserves the right to permanently restrict access to any or all of the Sites or a user account.
You understand that KAPITUS has no responsibility to monitor any materials submitted, posted, transmitted, or communicated to or within the Sites. If you believe that something on the Sites violates these Terms, please email [email protected].
8. Compliance with Laws You shall obey all federal, state, and local laws, regulations and rules that apply to your activities when you use Sites. KAPITUS reserves the right to terminate any account with respect to any of the Sites and to prevent your use of any and all of the Sites if such account is used to engage in illegal activity or to violate these Terms.
9. DMCA Notice We respect copyright ownership and expect users of our Sites to do so as well. It is our goal to limit or prevent access to the Sites by any users who are repeat infringers of copyright.
If you are a copyright owner or an agent thereof and believe any Site Content or User Content posted on any of the Sites infringes upon your copyrights, you may submit a notification of claimed infringement under the Digital Millennium Copyright Act (“DMCA”) by providing notice to KAPITUS through our designated agent at the address listed below containing the following information:
(a) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(b) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
(c) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(d) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(e) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
(f) A physical or electronic signature of a person authorized to act on behalf of the owner of a copyright that is allegedly infringed.
You acknowledge that if you fail to comply with substantially all of the above requirements of this Section your DMCA notice may not be valid and we may not be able to remove infringing content.
Director of Marketing & Communications
120 W. 45th Street
New York, NY 10036
10. Additional Products and Services Disclaimer KAPITUS makes available certain descriptions of its products and services on the Sites. KAPITUS does not represent or warrant that any particular product or service will conform to those descriptions. Each product or service is governed specifically and exclusively by the instrument entered into by the parties for that product or service and not by any information posted on the Sites. This paragraph is in addition to and not instead of the disclaimers set forth in these Terms.
11. Indemnity You agree to indemnify, defend and hold harmless KAPITUS, its affiliates, its licensors and their respective officers, directors, employees, agents and representatives from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, for any claims, causes of actions, procedures or allegations arising out of or relating to any violation of these Terms your use of any of the Sites, Site Content or User Content (including but not limited to infringement of third parties’ worldwide intellectual property rights or negligent or wrongful conduct) by you or any other person accessing any Site on your behalf. KAPITUS reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you.
12. Disclaimer THE SITES, THE SITE CONTENT AND USER CONTENT ARE MADE AVAILABLE “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, NON-INFRINGEMENT OR ENJOYMENT. WE MAKE NO GUARANTEE THAT THE SITE CONTENT OR USER CONTENT ON ANY OF THE SITES IS UP-TO-DATE, ACCURATE, OR COMPLETE, AND YOU SHOULD NOT RELY ON IT FOR ANY DECISION OR TO TAKE ANY ACTION. WE HEREBY DISCLAIM ANY WARRANTY THAT THE SITE CONTENT OR USER CONTENT ON ANY OF THE SITES WILL BE FREE OF INTERRUPTION, FREE OF ERRORS, OR THAT ANY OF THE SITES IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTKAPITUSNATING OR DESTRUCTIVE PROPERTIES.
13. Limitation of Liability UNDER NO CIRCUMSTANCES SHALL KAPITUS OR ANY OF ITS AFFILIATES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, COSTS OR ATTORNEY’S FEES ARISING OUT OF OR RELATING TO THESE TERMS, ACCESS TO, USE OF OR THE OPERATION OF ANY SITE, ANY OF THE SITE CONTENT OR USER CONTENT. YOUR SOLE AND EXCLUSIVE REMEDY AND KAPITUS’S SOLE AND EXCLUSIVE LIABILITY TO YOU FOR ANY REASON SHALL BE FOR YOU TO DISCONTINUE YOUR ACCESS TO OR USE OF THE SITES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
14. Limited Time to Bring Your Claim You agree that any cause of action arising out of or related to KAPITUS, any Site, any Site Content or User Content must be commenced within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
15. Restricted Access Portions Of The Sites You agree to take reasonable measures to ensure that no unauthorized person or entity shall have access to restricted areas of the Sites using your user name or password. You agree that, if you are provided rights to access or use restricted areas of the Sites, those rights are personal and non-transferable. You may not assign, sublicense, transfer, pledge, lease, rent, or share any user name or password to anyone other than an employee or agent authorized to act on behalf of your business, and subject to these Terms. You assume all responsibility for loss or misuse of your user name and password and are responsible for any activities undertaken by a person in possession of your user name or password for any reason except due solely to the gross negligence or willful misconduct of KAPITUS. KAPITUS reserves the right to terminate your access to the Sites or cancel your user name and password at any time and for any reason including, without limitation, your violation of these Terms.
17. Employment Opportunities We welcome expressions of interest in employment with KAPITUS. KAPITUS does not discriminate in hiring or employment on the basis of race, color, religion, disability, national origin, age, sex, or any other characteristic protected by applicable federal, state or local law. You understand that the invitation to submit your resume or expression of interest in a job posted on any Site is not intended to, and does not, create a contract between you and KAPITUS for employment or for any other benefit. You understand that any communication sent by you to KAPITUS inquiring about employment shall not be considered an application for employment and creates no obligation on the part of KAPITUS to respond. Should KAPITUS be interested in exploring employment opportunities with you, we will contact you in response to your inquiry.
19. Governing Law and Forum These Terms, and the interpretation, performance and enforcement of your and KAPITUS’s rights and duties, shall be construed in accordance with the laws of the State of New York, except for any conflict or choice-of-law principle thereof that would lead to the application of another jurisdiction’s laws to the rights and duties of the parties. By using any Site, you agree to submit any and all disputes arising out of or relating to these Terms to the exclusive jurisdiction of the state or federal courts located in New York County, New York, or, at KAPITUS’s sole election, to binding arbitration before a single arbitrator pursuant to the American Arbitration Association’s Commercial Dispute Resolution Procedures, with such arbitration to take place in New York, New York.
20. Miscellaneous These Terms operate to the fullest extent permissible by law. If any provision of these Terms is unlawful, void, or unenforceable, that provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. KAPITUS makes no representations that the Sites are appropriate or available for use in locations outside of the United States. Those who access or use the Sites from outside of the United States do so at their own volition and are responsible for compliance with local law. You shall obey all federal, state, and local laws, regulations and rules that apply to your activities when you use the Sites.
21. Contacting Us If you have any questions or concerns about these Terms, please contact us at [email protected].
To inquire about linking to our Sites or about trademark or copyright matters, please contact us at [email protected].