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Terms of Use

Updated: January 9, 2018

These Terms of Use, together with any included schedules (together, the “Agreement”) is entered into by and between you (the Client) and Capsifi. If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Client” or “you” means your company, and you are binding your company to this Agreement. Capsifi may modify this Agreement from time to time, subject to the terms under the heading “Changes to this Agreement” below.

By clicking on the “Test Drive”, “I agree”, (or similar button) that is presented to you, or by using or accessing Capsifi products or services, you indicate your assent to be bound by this Agreement. This Agreement governs the terms by which Capsifi sells, and the Client accesses, purchases and/or licences the Software, Services and associated Deliverables set out in this Agreement.

  1. Capsifi has developed computer software and visualized in the Website www.capsifi.com and https://capsifi.com and its subdomains, or alternatively visualized in specific domains for self-hosted Client’s.
  2. The Client wishes to implement and use in its own business the Software, developed by Capsifi, and Capsifi is willing to grant such rights to the Client.

NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:


Terms and Definitions

Terms below shall have the following meanings:

  1. “Business Day” or “Business Hours” means 9:00 a.m. – 5:00 p.m. Monday through Friday, excluding public holidays in Sydney, Australia.
  2. “Capsifi” means Capsicum Business Architects Pty. Ltd. ABN 18 164 655 485, of Level 13, 61 York St, Sydney, NSW 2000, Australia.
  3. “Capsifi Marks” means the names, trademarks, trade names, drawings, logos and symbols which Capsifi uses to promote and identify the Website, Software and any incorporated and derivative products which may be disclosed to the Client. The Capsicum Business Architecture Framework and the Jalapeno Business Modelling Platform are registered trademarks of Capsicum Business Architects and/or its affiliates. Other names may be trademarks of their respective owners.
  4. “Capsifi Products” means the Software and other products of Capsifi together with any products that are hereafter designed, developed or marketed by Capsifi.
  5. “Client” means the party specified in the Scope of Work, and/or any legal entity or natural person which uses the Website and/or the Software.
  6. ”Client’s Data” means any data, content, code, video, images or other materials of any type that the Client uploads, submits or otherwise transmits to or through Hosted Services.
  7. “Current Version” means the version of Software containing the latest commercially available Upgrade.
  8. “Deliverables” means all items Capsifi or Capsifi Personnel provides to the Client as set out in a Scope of Work.
  9. “Error” means any material and reproducible failure of the Software to operate in accordance with the user help or software guides available.
  10. “Error Severity 1 or S1” means a critical problem with the system where a Service or a major Software component that is critical to the Client’s business operations is unavailable and severely impacts the business operations, and there is no bypass or workaround available. S1 is reserved for the complete loss of business critical functionality impacting users of the Software.
  11. “Error Severity 2 or S2” means a severe problem where a Service or a major Software component that is critical to the Clients business operations is not fully functional so that it has the potential to severely impact the business operations, and there is no bypass or workaround available. S2 is reserved for incidents that cause extensive impact for users of the Software.
  12. “Error Severity 3 or S3” means a moderate problem where a Service or a Software component is unavailable or is not fully functional, where there is disruption to multiple users and there is no acceptable bypass or workaround available. S3 is reserved for incidents that cause only moderate impact for users of the Software.
  13. “Error Severity 4 or S4” means a minor problem where a Service or a Software component is not fully functional, but a bypass or workaround is available with minor impact to users. S4 is generally used for incidents that cause some disruption but with minimal or no impact for users of the Software.
  14. “Error Severity 5 or S5” means a minor problem with a Service or a Software component which is logged and closed as a request for enhancement to be assessed for potential incorporation in a future Upgrade.
  15. “Fix” means:
    1. the repair or replacement of a version of the Software to remedy an error or issue; or
    2. a change advised by Capsifi in the procedures to be followed by the Client to avoid an error or issue, without significantly impairing performance of the Software which is generally available to Capsifi’s other Clients in respect of any Software or Service.
  16. “License” means the Software license granted to the Client by Capsifi pursuant to these Terms of Use.
  17. “Loss” means any liabilities, losses, damages, costs and expenses (including legal costs and expenses, regardless of whether incurred or awarded) arising in contract, tort (including negligence) or otherwise.
  18. “Materials” means of anything provided by the Client (or the Client’s Personnel) to assist Capsifi or Capsifi Personnel to perform the Services or deliver the Deliverables including any algorithms, data, logos, designs, copy and related materials provided by the Client or the Client’s Personnel.
  19. “Operating Environment” means the operating environment(s) of Customer’s Hardware Platform.
  20. “Party” means either Capsifi or the Client.
  21. “Parties” means both Capsifi and the Client.
  22. “Patch” means a consolidation of one or more Fixes, which are made available by Capsifi, which is generally available to Capsifi’s other Clients in respect of any Software or Service.
  23. “Personnel” of a party means the officers, employees, contractors (including subcontractors), representative or agents of that party.
  24. “Resolution Time” means the elapsed clock time during Business Hours between:
    1. Capsifi’s logging of the time we log a problem reported by Customer you, and
    2. Implementation of a Temporary Fix/ Workaround (except for the creation of a Temporary Fix or Workaround of a Severity Level 1 Error where time is “unwindowed” i.e. work carries on outside of Business Hours and counts towards calculation of the overall Response Time).
  25. “Response Time” means the elapsed clock time during Business Hours between:
    1. Capsifi’s logging of the time we log a problem reported by the Customer and you, and
    2. A Capsifi our technical support analyst capable of understanding the problem speaking to Customer’s your support contact about the problem (except in relation to a Severity Level 1 Error where time is “unwindowed” i.e. the response may be outside of Business Hours).
  26. “SaaS model” means a software licensing and delivery model in which software is licensed on a subscription basis and is centrally hosted by Capsifi or by arrangement on the Clients cloud infrastructure. The Software is accessed by Clients via a web browser.
  27. “Scope of Work” or “SOW” means the specifications, price and time frames applicable to the performance of the Services and the delivery of the Deliverables, set out in an agreement or a Scope of Work.
  28. “Service” means the Services that Capsifi provides to the Client.
  29. “Services” means the services that Capsifi provides to the Client as set out in the Scope of Work.
  30. “Service Levels” means the Response Times and Resolution Times to each Error Severity Level.
  31. “Service Level or SLA” means the Response Times and Resolution Times to each Error Severity Level.
  32. “Software” means the Capsifi Jalapeno Business Modelling Platform computer software, developed by Capsifi, and visualised in the Website www.capsifi.com and https://capsifi.com and its subdomains, or alternatively visualized in specific domains for self-hosted Client’s.
  33. “Support” means the support services set out in the Schedule 1 – Support and services selected by the Client under the Scope of Work.
  34. “Support Term” means the period of time selected in the Scope of Work during which the Client continues to license any Capsifi Software to which that Support relates.
  35. “Supported Version(s)” means the Current Version and any previous version of the software for up to 12 months from the date that it ceased to be the Current Version.
  36. “Term” means the term set forth in these Terms of Use.
  37. “Terms of Use” means these terms of use of the Software by the Client.
  38. “Third Parties” means any other persons, organisations and authorities, besides Capsifi and the Client.
  39. “Upgrade” means a modification or enhancement to the Software, containing features or functionalities, and may be a consolidation of one or more Patches, which is generally available to Capsifi’s other Clients in respect of any Software or Service.
  40. “Website” means the web-based site www.capsifi.com and https://capsifi.com and its subdomains, and specific domains and subdomains used for the Software or any successor web site designated by Capsicum.
  41. “Workaround or Temporary Fix” means a change advised by Capsifi us in the procedures to be followed by Customer to avoid an Error without significantly impairing performance of the Software.

 


Scope of License

  1. Software Description
    Capsifi provides its Software as a SaaS (Software as a Service) web-based application. The Software is designed for cloud computing, so businesses can avoid the costs and complexity associated with the purchase, installation, configuration, and ongoing maintenance of an on-premises data center and dedicated hardware, software, and accompanying administrative staff.
    Capsifi’s Software is powered by the MarkLogic Enterpise NoSQL Database. Capsifi has negotiated a special MarkLogic OEM license pricing, and this is included in the license costs listed above (where applicable). This license provides a limited use license exclusively for the use of running the Software. This database is a required component, fundamental to the Software, and cannot be substituted with an alternative.
  2. Third Party software
    The Software includes code and libraries licensed to us by third parties, including open source software.
    Any third party software provided by Capsifi is provided subject to the licensing terms of the relevant third party licensor.
  3. License Grant
    During the Term Capsifi hereby grants to the Client a nonexclusive, non-transferable right to use the Software for the Client’s own internal business purposes based on a SaaS licensing and delivery model.
    Capsifi grants the right to use the Software, only under the terms and conditions, set forth in these Terms of Use. The licence includes updates and support for as long as the term license is active. The license expires if not renewed and it is not perpetual. By using the Website and the Software the Client declares to have accepted and obliges to comply with these Terms of Use.
    These Terms of Use, together are considered as a contract between Capsifi and the Client. By any act of use of the Website or the Software the Client declares to have accepted these Terms of Use.
  4. Scope of Permitted Use
    1. Capsifi grants to the Client, a non exclusive, non transferable, non-sublicensable, worldwide licence to use the Software and the Deliverables for the Client’s own internal use in accordance with the Agreement.
    2. Third party use – The Client must not use the Software and the Deliverables for the benefit of any third party, or provide any Deliverable or the Software, to any third party without first obtaining written permission from Capsifi. Notwithstanding this clause, subject to the payment of any additional Licence Fees for additional users, the Client may use the Software and the Deliverables for the benefit of the Client’s group companies.
  5. Restrictions
    The Client shall have no right to:

    1. Use the Software in any other manner except explicitly stipulated in these Terms of Use;
    2. Copy and install the Software in the Client’s own computer network or on other hardware, unless the licence subscription is for Client Self-Hosting;
    3. Market, resell or sublicense the Software or any parts of it, unless otherwise agreed between the Parties in writing;
    4. Reproduce, distribute, transmit or publish Software’s functionality, specific information, process patterns and other valuable information, either with or without valuable consideration, in any form, format or method, including without limitation, by posting on the Internet;
    5. Disclose to Third Parties or use in any other way, besides designated in these Terms of Use, the Software, its parts, components and functionality principles;
    6. Alter, modify, or create any derivative work based on the whole, part or any embedded part of the software;
    7. Decompile, disassemble, translate, reverse engineer or otherwise discern the source code or the object code of the software;
    8. Reproduce (other than a reasonable back-up copy for your own use), copy and incorporate information/source code from the Software in other software products or software, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the software;
    9. Distribute, disclose or allow use of the software, in any format, through any timesharing service, service bureau, network or by any other means.
    10. Otherwise offer the Software as part of a product or service for any commercial use or purpose, either with or without valuable consideration, unless otherwise agreed between the Parties in writing;
    11. Require any delivery, installation or use of the Software on premises of the Client, unless the licence subscription is for Client Self-Hosting.

    In any case of use, not explicitly granted to the Client in these Terms of Use, regardless of the scope, term and conditions of the use, the Client shall owe Capsifi a default payment to the amount of USD 25 000, together with a compensation to the amount of two times the consideration, received by the Client from any Third Parties in relation with the misuse of the Software.

  6. Ownership
    1. Capsifi owns the Software, the functionality, model patterns and all intellectual property rights embodied therein.
    2. Capsifi retains all rights to use the Software and grants those rights to Third Parties at its own free will and its sole and absolute discretion.
    3. The Client acknowledges that Capsifi owns or holds a license to use and sublicense various pre-existing development tools, routines, subroutines and other Software, data, materials and background technology that Capsifi may include in the Software.
    4. Capsifi owns all IP rights on the website, its domain, its content, source code graphic and other elements.
    5. With respect to user content, the data the Client enters (User Content) into or uses in connection with the Software is solely the property of the Client. Capsifi and its successors, assigns, and third party service providers have no ownership interest in and have no license to use, reproduce, modify, own, create derivative works from, sublicense, distribute, publicly display, publicly perform, or otherwise exploit or use any such content provided by the Client or Third Parties to the Client.
  7. Limitations
    1. The Software is licensed, not sold, to the Client. The Client acknowledges that Capsifi retains the entire right, title and interest in and to the Software and all associated intellectual property rights (including, without limitation, all copyrights) related to any item of the Software which Capsifi provides to the Client. No title to or ownership of the Software, or any proprietary rights related to the Software, is transferred under or by virtue of these Terms of Use.
    2. Where the Client provides the Software to its employees, the Client understands and will ensure that its employees and any Third Parties understand that the Software is provided for the Term only.
    3. The Client shall not itself, or permit others to, download, decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of the Software, remove, obscure, or alter any copyright, trade secret, trademark, patent or other proprietary rights notice affixed to or displayed on the Website or in the Software. These limitations shall be applicable for the Website, the Software, as well as for any third-party software, which may be integrated in the Website or the Software.
    4. The Client will use best efforts to advise Capsifi on a timely basis, if the Client becomes aware of any unauthorised copying of the Software by its employees or any third party of the Client that is provided access to the Software by the Client and will use its best efforts to cooperate with Capsifi to resolve the matter.
  8. Term
    1. The license shall be granted for an unlimited term.
    2. The license shall be valid only until the Client pays in time the fees due and complies fully with these Terms of Use and the other instructions and requirements of Capsifi, given via the Software, the Website or in some other way.
    3. After the expiration of the Term, the Client shall have none of the rights, granted with these Terms of Use.
    4. After the expiration of the Term, the Software may no longer be functional and the Client shall have no right to claim any damages or any other compensation in relation with the termination of Software functionality.
    5. After the expiration of the Term, self-hosted Client’s must uninstall and delete any copies of the Software and accompanying documentation in the Client’s possession, and advise Capsifi within 30 days that they have deleted it.
    6. In case of unauthorised use of the Software by the Client after Capsifi has terminated Client’s access to the Software, regardless of the scope, term and conditions of the use, the Client shall pay Capsifi compensation to the amount of three times the annual fee for use, but no less than USD 25 000, regardless of any liability limitations, set in these Terms of Use.
  9. Territory
    1. The Client shall be entitled to access the Software from everywhere, within the explicit agreement that the Capsifi Cloud Hosting infrastructure is located in Australia, unless an alternative region has been agreed by explicit arrangement.

 


Free Trial and Free Services

  1. Free Trial
    If the Client requests or registers on the Capsifi Website for a free trial, Capsifi will make one or more Services available to the Client on a trial basis free of charge until the earlier of (a) the end of the free trial period for which the Client registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by the Client for such Service(s), or (c) termination by Capsifi in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

    1. Any data the Client enters into the Software or Services, and any customisations made to the Services by or for the Client, during the Client’s free trial will be permanently lost unless the Client purchases a subscription to the same Services as those covered by the trial, purchase applicable upgraded Services, or export such data, before the end of the trial period. The Client must export its data before the end of the trial period or its data will be permanently lost.
    2. Notwithstanding section “warranties, compatibility, remedies, exclusions”, during the free trial the Services are provided “as-is” without any warranty and shall have no indemnification obligations with respect to the Services for the free trial period. Without limiting the foregoing, Capsifi and Capsifi Personnel do not represent or warrant to the Client that: (a) the Client’s use of the Services during the free trial period will meet the Client’s requirements, (b) the Client’s use of the Services during the free trial period will be uninterrupted, timely, secure or free from error, and (c) usage data provided during the free trial period will be accurate. notwithstanding anything to the contrary in section “warranties, compatibility, remedies, exclusions”, the Client shall be fully liable under this agreement to Capsifi and its affiliates for any damages arising out of the Client’s use of the Services during the free trial period, any breach by the Client of this agreement and any of the Client’s indemnification obligations hereunder.
  2. Free Services
    Capsifi may make Free Services available to the Client. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section (Free Services) and any other portion of this Agreement, this section shall control. Please note that Free Services are provided to the Client without charge up to certain limits as described in the Documentation. Usage over these limits requires the Clients purchase of additional resources or Services. The Client agrees that Capsifi, in its sole discretion and for any or no reason, may terminate the Client’s access to the Free Services or any part thereof. The Client agrees that any termination of the Client’s access to the Free Services may be without prior notice, and the Client agrees that Capsifi will not be liable to the Client or any third party for such termination. The Client is solely responsible for exporting the Client’s Data from the Free Services prior to termination of the Client’s access to the Free Services for any reason, provided that if Capsifi terminates the Client’s access, except as required by law Capsifi will provide the Client a reasonable opportunity to retrieve the Client’s Data.

    1. Notwithstanding section “warranties, compatibility, remedies, exclusions”, the free Services are provided “as-is” without any warranty and Capsifi shall have no indemnification obligations with respect to the free Services. Without limiting the foregoing, Capsifi and Capsifi Personnel do not represent or warrant to the Client that: (a) the Client’s use of the Free Services will meet the Client’s requirements, (b) the Client’s use of the Free Services will be uninterrupted, timely, secure or free from error, and (c) usage data provided through the Free Services will be accurate.
    2. Notwithstanding anything to the contrary in section “warranties, compatibility, remedies, exclusions”, the Client shall be fully liable under this agreement to Capsifi and its affiliates for any damages arising out of the Client’s use of the Free Services, any breach by the Client of this agreement and any of the Client’s indemnification obligations hereunder.

 


Client Obligations

    1. The Client shall be responsible for the content, entered when using the Software, as well as for the activity performed through it. The Client is obliged not to use the Software or the Website in any manner that would violate the law or the rights of Third Parties.
    2. The Client shall at all times comply with all applicable laws and regulations for the use of the Software and shall indemnify Capsifi for any damages resulting from illegal practices that are executed in connection with or within the Software by any employee or agent of the Client.
    3. The Client shall refrain from using or from claiming any rights in or to the names “Capsicum”, “Capsifi”, “Jalapeno” or any other registered or unregistered trademark or trade name of Capsifi for any purpose.
    4. The Client is obliged:
      1. Not to fill, download, store, distribute, use, transmit or provide links to information, data, text, files, software, photo, video or audio materials, messages, as well as any other materials and content:
        1. that are contrary to the law or violate the rights and freedom of man under the applicable Australian and international acts, the EU law, the law of the country from which the Client is or the country from where he/she is offering the goods/services;
        2. that are propagating discrimination, fascist, racist or other antidemocratic ideology;
        3. that harm the reputation of others and call for violent change of the constitutionally established order, for committing a crime, for violence or incitement of racial, national, ethnic or religious hatred;
        4. that violate material or moral rights of any third party, including copyright and their related rights;
        5. that contain pornography, sexual violence, as well as links to websites with such content;
        6. that contain computer viruses or other malicious code or software;
        7. misleading and false sites for fraudulent purposes and illegally acquisition of information.
      2. To comply with the applicable international law, EU law and the law of the country from which the Client is or the country from where he/she is offering the goods/services, these Terms of Use, the instructions on the Website and any additional instructions from Capsifi, these Term of use and the rules of morality and good manners;
      3. Not to interfere in the proper operation of the Software and the Website, including, but not only, to not hinder the access of Third Parties, to not make non-granted access, not to impair or hinder availability, reliability or quality of the Software to other users, etc.;
      4. Not to use the Software for any activity without granted authorisation/registration for this activity.
      5. To notify immediately Capsifi for every known case of violation done or found when using the Software, including employees of the Client or Third Parties;
    5. The Client provides at its own expense the required computer equipment, operating systems, software and Internet access to use the Software.
    6. When the Client has provided access to the Software to Third Parties for using and controlling it, the Client shall be responsible for the actions of these Third Parties as the Client’s own. The Client is responsible for the confidentiality of the Client’s Data for access to the Client’s profiles (username and password) and accepts full responsibility for activities/actions performed via the Client’s profile.
    7. Facilities Access
      To the extent that Capsifi’s Personnel access the Client’s premises, the Client agrees to provide Capsifi Personnel with:

      1. reasonable access to any facilities the Personnel may reasonably require to provide the Services and the Deliverables; and
      2. adequate and safe facilities for them that comply with all applicable laws and you will warn the personnel of any hazard or danger.
    8. Accuracy of Information
      Capsifi relies on the Client to supply complete and accurate information required to enable Capsifi or Capsifi Personnel to provide the Services and Deliverables. The Client agrees that in order to perform the Services and deliver the Deliverables Capsifi is entitled to rely on information provided by the Client, without enquiry or verification, and the Client’s right to provide that information to Capsifi. Capsifi will not be liable for any loss arising from our reliance on the Client’s information or any inaccuracy, omission or other defect in, any such information or materials.
    9. Client Materials
      The Client agrees, the Client’s Materials, will not infringe any legal right of any party or breach any law. The Client indemnifies Capsifi and agrees to keep Capsifi indemnified against loss or damage that Capsifi suffer or incur arising out of the Client’s Material infringing any right of any third party or breaching any law.
    10. Client Information, Assistance and Access
      The Client must ensure that the Client, the Client’s Personnel and any Third Parties (as applicable) provide all information, assistance and access Capsifi reasonably require to enable Capsifi or Capsifi Personnel to perform the Services and deliver the Deliverables. The Client is responsible for ensuring that the Client’s Personnel have the appropriate skills, qualifications and experience to provide the information, assistance and access Capsifi requires. The Client must promptly update any information provided by the Client to Capsifi, where there has been a material change to any information provided by the Client, which affects the scope of the Services or Deliverables, the performance of the Services by Capsifi or Capsifi Personnel, or the delivery of the Deliverables.
    11. Client Information Technology
      The Client agrees to have in place reasonable safeguards, precautions and security procedures to:

      1. protect Capsifi Services and Deliverables from access of use by an unauthorised user; and
      2. protect Capsifi information technology systems, including implementing reasonable procedures to guard against virus’ and unauthorised interception, access, use or loss of electronic communications between the Client and Capsifi.
    12. Access Security for Users
      There the Services include use and access to any online service or Software as a service operated by Capsifi, the Client agrees:

      1. the number of Authorised Users is the Maximum Users;
      2. the user access to the Software will be maintained by the Client Personnel
      3. unless permitted by law, the Client must not allow or facilitate any third person making the Service available to any person other than an Authorised User;
      4. where it is needed for Capsifi Personnel to update user access to the Software on behalf of the Client, the Client will provide Capsifi with the name and work email address of each Authorised User, for Capsifi to provide the Client Personnel with Login IDs;
      5. where it is needed for Capsifi Personnel to update user access to the Software on behalf of the Client, the Client must as soon as reasonably possible notify Capsifi if any Authorised User’s Login ID is to be cancelled, whether this is because the Authorised User has left the Client’s employment or otherwise.
      6. Capsifi may cancel a Login ID at any time to:
        1. protect Capsifi Products, Capsifi intellectual property rights, Capsifi Confidential Information;
        2. protect the intellectual property rights or confidential information of a third party; or
        3. prevent a breach of this Agreement
      7. The Client must immediately notify Capsifi if the Client becomes aware of any Authorised User who has disclosed their Login ID, or otherwise breached any other provision of these Terms of Use.
    13. Upgrades, Fixes and Patches
      Provided the Client is not in default of any obligation under these Terms of Use, Capsifi will provide the Client Upgrades, Fixes and Patches. The Client will comply with all reasonable directions by Capsifi in relation to Upgrades, Fixes and Patches. Capsifi will not be liable to the Client, or to any third party, for any Loss suffered by the Client as a result of failure by the Client to follow Capsifi or Capsifi Personnel directions in relation to any Upgrades, Fixes and Patches.
    14. Delays
      Where the Client or the Client’s Personnel cause any delay which affects the scope of the Services or Deliverables, the performance of the Services, or the delivery of the Deliverables, the Client must immediately notify Capsifi of any delay, the cause of that delay and the impact of the delay. The Client must take all steps necessary to minimise the impact of the delay. Where any delay caused by the Client or the Client’s Personnel causes Capsifi or Capsifi Personnel to fail to perform one or more obligations under this Agreement, the Client agrees that:

      1. The Client will pay Capsifi for the provision of any additional services Capsifi or Capsifi Personnel provide as a result of the delay; and
      2. The Client shall be liable for any Loss that Capsifi reasonably suffers or incurs as a result of that delay,
      3. for the avoidance of doubt, Capsifi will not be liable to the Client for any breach of Capsifi’s obligations under these Terms of Use, to the extent that breach is a result of that delay.
    15. Unlawful purpose
      The Client must not use the Services or the Deliverables for any unlawful purpose.
    16. Expiry of the Term
      After the expiry of the prepaid periods the Client shall have the option to continue using the Software at the new fee rates or to immediately cease using the Software.
    17. Fees and payment
      1. Payment
        The Client agrees to pay Capsifi the fees and charges set out in Scope of Work (Fees), plus any applicable goods and services tax (GST) and other taxes on provision of services and other deliverables in accordance with Scope of Work and within thirty (30) days after the date of our invoice issued for those Fees.
      2. Expenses
        The Client must reimburse for all reasonable out of pocket costs and expenses Capsifi incur in connection with the Scope of Work, including for any goods and services purchased on the Client’s behalf. All expenses incurred must be pre-approved by the Client.
      3. Interest on late payment
        If any Fees are more than sixty (60) days overdue Capsifi may charge interest at an annual rate of 9%, as at the date the payment of those Fees were due.
      4. Suspension
        If payment is more than sixty (60) days overdue or the Client otherwise are in breach of this Agreement Capsifi may suspend provision of the Services and/or the Deliverables.
      5. GST – Unless otherwise stated in Scope of Work, Capsifi’s Fees are GST exclusive. If Capsifi makes a supply under or in connection with this Agreement on which GST is imposed (not being a supply the consideration for which is specifically described in Scope of Work as GST inclusive):
        1. the consideration payable or to be provided for that supply under this Agreement but for the application of this clause (GST exclusive consideration) is increased by, and the Client must also pay to Capsifi, an amount equal to the GST payable by Capsifi on that supply; and
        2. the amount by which the GST exclusive consideration is increased must be paid to Capsifi by the Client without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.

        If a payment to a party under these Terms of Use is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.

      6. Variations
        1. Except where the Scope of Work specifies that the Fees are a fixed price, Capsifi may vary any Fees by giving the Client thirty (30) days written notice of the variation. Capsifi reserve its rights to vary any Fees, where the Client is not in compliance with the Client’s obligations under these Terms of Use.
        2. Estimates non-binding – Any estimate given by Capsifi of any fees or charges, whether before or after the date of the Scope of Work, will be given after reasonable consideration of the information given to Capsifi at the time, but will not be binding.
      7. Additional User Fees
        At the end of each Billing Period, the Subscription Fees will be adjusted to reflect any increase in the number of users. The Client declares that it is aware that for any additional user the Client shall pay an additional user fee on renewal; and the Client may at any time access the current number of users from the Software Admin Tools page.
      8. Disputed invoices
        If the Client has any issue in relation to an invoice the Client must pay the amount that is not in dispute, and notify Capsifi of the dispute within seven days of receiving the disputed invoice. If it is resolved or agreed that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then the Client must pay the amount finally resolved or agreed together with any interest on that amount.
      9. License Certifications and Audits
        At Capsifi’s request, the Client agrees to provide a signed certification that the Client is using the Software pursuant to the terms of this Agreement, including the Scope of Permitted Use. The Client agrees to allow Capsifi, or Capsifi’s authorised agent, to audit the Client’s use of the Software. Capsifi will provide the Client with at least 10 days advance notice prior to the audit, and the audit will be conducted during normal business hours. Capsifi will bear all out-of-pocket costs that Capsifi incur for the audit, unless the audit reveals that the Client has exceeded the Scope of Permitted Use. The Client will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at the Client’s own cost. If the Client exceeds its Scope of Permitted Use, Capsifi may invoice the Client for any past or ongoing excessive use, and the Client will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Capsifi at law or equity or under this Agreement.

       


      License and Service Fees

      1. Fees
        1. In full and complete consideration of the granted license and services hereunder, the Client shall pay to Capsifi the fees set forth in the Website or by direct agreement.
        2. All fees, charges and any additional sums payable are set exclusive of any and all relevant taxes, including goods and services (GST) or value added taxes which shall be paid by the Client at the rate and in the manner for the time being prescribed by law. Goods and services taxes (GST) or value added taxes shall be included if applicable.
        3. The fee includes:
          1. Initial Software user license according to selected fee plan;
          2. Software updates for the period of the Term according to a schedule, approved and applied by Capsifi.
        4. Amount of fees are valid for the respective billing cycle. Capsifi has the right to increase or decrease the amount of fees at its own discretion. In case that Capsifi decides to raise the amount of fees, Capsifi shall do that after the expiry of all use terms, prepaid by the Client. After the expiry of the prepaid periods the Client shall have the option to continue using the Software at the new fee rates or to cease using the Software.
        5. Fees shall be paid via bank transfer or with a credit card, according to the instructions in the Website or by direct agreement.
      2. The Client has the right to use the Software only until the fees are being paid properly and on time and the Client complies with its obligations.

       


      Warranties, Compatibility, Remedies, Exclusions

      1. Capsifi provides the Software as a service. The Client understands that it is the intent of Capsifi to provide Software which is compatible with the current releases of operating systems and browsers on which the Software runs, as advised in these Terms of Use, on the Website and/or additionally specified by Capsifi; however, Capsifi hereby disclaims and excludes any representations or warranties that the Software is compatible with any operating system, computer platform or browsers which the Client may choose to use, except for those expressly advised by Capsifi. Capsifi further disclaims any warranty that the Software, including any future correction, modification, update, enhancement, new version or new release of the Software, will be made compatible with new releases of an operating system, computer platforms and browsers within a specified amount of time, or at all.
      2. The Client understands that the Software cannot and shall not be used in the event that (a) the Software is not properly used or configured due to some action, failure or limitation caused by the Client, its employees of the Client or Third Parties; (b) the Software has been subjected to illegal use by the Client, or the hardware upon which the Software is accessed is inoperable due to a failure of electric power, lack of internet connection or faulty environmental controls not within the control of Capsifi; or (c) any person other than an authorised Capsifi representative modifies the Software.
      3. Any set up or support actions may be performed only by Capsifi or Capsifi Personnel unless covered by a direct agreement.
      4. The warranties set forth in this section are the only warranties made by Capsifi with respect to the software, documentations and any other items or services furnished by Capsifi under these Terms of Use. Capsifi expressly disclaims and excludes and the Client hereby waives all other warranties, obligations, liabilities of Capsifi and rights and remedies of the Client, express or implied, oral or written, arising by law or otherwise regarding any of the foregoing including, without limitation, any warranties of merchantability, fitness for a particular purpose, non-infringement and any warranties arising from course of performance, course of dealing or usage of trade. Without limiting the generality of the foregoing, Capsifi does not warrant that the software or documentation will meet the Client’s requirements or that operation of the software will be uninterrupted or error free.
      5. Limitation of Liability
        In any case the direct damages for either party are limited to the total amount of fees paid for subscription license for the current year. Neither Capsifi, nor the Client shall be liable to each other for any indirect, consequential, incidental, special (including multiple or punitive) or other indirect damages that are claimed to be incurred by the other Party whether such claim arises under contract, tort, (including strict liability), lost profits, lost data, business interruption, loss of business reputation or goodwill, even if the party has been advised of the possibility of such damages or any other theory of law. In any case Capsifi shall not be liable for any damages of any sort, if such damages result from actions or omissions of Third Parties, which are not under the control of Capsifi.
      6. Capsifi shall not be liable for:
        1. Destruction or loss of data owned by the Client for reasons beyond the control of Capsifi; Inability of the Client to use the Software, due to reasons beyond the control of Capsifi;
        2. Claims made by Third Parties against the Client in regard with the use of the Software be the Client;
        3. Loss of data, damages or future earnings due to untimely payment for the Software by the Client;
        4. If the Client cannot get access due to problems beyond the control of Capsifi (hardware problem, software problem, a problem with Internet connectivity, etc.).
      7. Capsifi shall not be obliged to monitor the information, which the Client stores, or to check, if it complies with current legislation, violates the rights of Third Parties or the regulations of these Terms of Use.
      8. Capsifi shall not be responsible for stored, distributed, used, transmitted information, data, text, files, software, photo materials, video materials, audio materials, messages, links, references and any other materials and content, stored by the Client or any of its employees, as well as for the activity of the Client or any of its employees, performed with the Software.
      9. Capsifi shall not be responsible for any damages or loss of profits by the Client as a consequence of the termination, suspension, modification or limitation of the Software or the Services, as well as for removal of materials or content in cases that the Client has failed to fulfil its obligations.
      10. Capsifi shall not be responsible for not providing services in case of non-payment of sums due within the relevant deadline by the Client, in case of non-adherence to the guidelines and the technological requirements for use of the Software, in case of improper handling of the Software, as well as a result of tests performed by Capsifi to check the Software, connections, networks, etc., as well as tests aimed at improving or optimizing the Software.
      11. Capsifi may include in the provided services other services, provided by Third Parties. The provider can’t be and is not responsible for the quality of the services provided by Third Parties and is not responsible for any damage to the Client due to problems with the services from these Third Parties.
      12. Capsifi has the right, without being liable for any damages or future earnings, to suspend or terminate Clients access to the Software in case that the Client uses it for violation of laws, violation of rights of Third Parties or of these Terms of Use.

       


      Personal Data Protection

      1. Capsifi is obliged to exercise reasonable care to protect the personal data of the Client and not to distribute, sell or provide to Third Parties the personal data of the Client, unless sharing data is required for the execution of these Terms of Use, by a competent authority or required by law.
      2. The Client understands and accepts that the Software collects some personal data from its users. The personal data collected and the purposes for collection, use and transfer of personal data, is described in the Privacy Policy document, published on the Website www.capsifi.com, as it may change from time to time, depending on the scope of services, provided by Capsifi.
      3. The content, which the Client enters into the Software, including Private User Content, is property of the Client and the Client’s sole responsibility.
      4. The Client confirms to have provided voluntarily to Capsifi any personal data, connected to the signing and the execution of these Terms of Use, and gives the permission to Capsifi for collecting, processing and storage of personal data, as well as transfer of this data, when this is necessary for providing the services by Capsifi or when it is demanded by applicable law.
      5. The Client shall be responsible for entering somebody else’s personal data without due authorisation.
      6. The Client shall be obliged to obtain the explicit agreement of all Third Parties, whose personal data is entered by the Client or in any way affected by the use of the Software by the Client, for gathering, processing and storage of their personal data (if any) and to perform the necessary registrations and other activities, in order to legally collect, process, and store such data (if such are required by law). The Client is responsible for the way the Client collects, processes and stores the personal data of Third Parties, as well as for the consents and permissions the Client gives on behalf of Third Parties.
      7. The Client agrees that Capsifi may collect email addresses for authentication purposes and add them to Capsifi mailing list to send updates about new releases and developments through Capsifi communications. If at any time the Client or any of its employees would like to unsubscribe from receiving future emails, he or she must follow the instructions on how to unsubscribe at the bottom of Capsifi emails.
      8. Unless directed by the Client and agreed by Capsifi to de-activate analytics reporting for its instance, the Client agrees that Capsifi may monitor and analyse cumulative behaviour via the Website and the Software. Capsifi may then use the cumulative data to improve the Website, the Software and the overall Capsifi customer service.
      9. The Client agrees that Capsifi may use Cookies on the Website and the Software (unless directed by the Client and agreed by Capsifi to de-activate analytics reporting for its Software instance) and collects information about the preferences and interests of the visitors and to analyse cumulative data about the people browsing the Website.
      10. Although Capsifi will take all reasonable precautions to keep personal data safe and secure, Capsifi shall not be liable for extraneous circumstances such as theft, communication errors or tampering.
      11. The Client agrees that Capsifi will be free to change and integrate any services in the Software, including services provided by Third Parties. If such change or integration demands transfer of personal data to Third Parties, Capsifi shall notify the administrator of the Client’s account (who shall be appointed and authorised by the Client) by showing a message within the Software. The administrator shall be given the opportunity to accept or deny the new service/functionality of the Software, as well as the transfer of personal data, if required. If the administrator accepts the new service/functionality and gives his/her consent for the transfer, it shall be considered that the Client has given the Client’s consent for the transfer on behalf of all Third Parties, whose personal data is affected. Personal data shall be then transferred only after and if Capsifi has received the consent of the Client through the Client’s account administrator as described above. The consent of the Client shall be valid for all personal data, entered by the Client in the Software, including personal data of Third Parties. It shall be the Client’s responsibility to acquire the consent of such Third Parties on the transfer. The Client acknowledges that Capsifi does not control the content, entered by the Client and has no contact with any Third Parties, whose personal data the Client may enter in the software. If the third party is not situated in the EU, the rules for personal data transfer shall also apply. If the Client objects to such transfer, the Client shall not be able to use those new/integrated services/functionalities.
      12. Even if the Client has not objected initially to the transfer, the Client may at all times inform in writing Capsifi that he/she does not want the Client’s personal data to be transferred any more to Third Parties in case of new service integration and Capsifi shall not transfer in the future such data after the date on which Capsifi has received the communication from the Client. However, if the Client has initially accepted such transfer and has not later on informed Capsifi in writing about his/her objection, it shall be considered that the Client has given the Client’s consent for data transfers until the date of the objection. If the Client objects to such transfer, the Client shall not be able to use those new/integrated services/functionalities anymore.

       


      Client’s Data

      1. The Client will retain all right, title and interest in and to the Client’s Data in the form provided to Capsifi. Subject to the terms of this Agreement, the Client hereby grants to Capsifi a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of the Client’s Data, in each case solely to the extent necessary to provide the applicable Hosted Service to the Client and (b) for Hosted Services that enable the Client to share the Client’s Data or interact with other people, to distribute and publicly perform and display the Client’s Data as the Client (or the Client’s authorised users) direct or enable through the Hosted Service. Capsifi may also access the Client’s account or instance in order to respond to the Client’s support requests.

       


      Personal Data Transfer

      1. The Client understands and agrees that the Software hosting for Capsifi Cloud Hosting uses Amazon Web Services (AWS) as its underlying infrastructure. The default region used for AWS is located in (AU) East Coast Australia. By explicit arrangement Clients that prefer another region can consult with our team.
      2. Client’s using the Capsifi Cloud Hosting service understand and agree that at initial registration the Client shall be automatically directed to the cloud hosting infrastructure, located in Australia, outside the EU.
      3. Client’s using the Capsifi Cloud Hosting service hereby gives the Client’s explicit and unambiguous consent that the Client’s Data may be transferred and stored on the territory of Australia or an alternative region agreed by explicit arrangement.
      4. Client’s using the Capsifi Cloud Hosting service understand and agree that if the Client shall enter or store any personal data, protected by the EU legislation (including but not limited to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and any other applicable legislation), the Client gives the Client’s unambiguous consent that such data may be transferred and stored on the territory of Australia or an alternative region agreed by explicit arrangement.
      5. Client’s using the Capsifi Cloud Hosting service understand and agrees that the Client shall be also responsible to obtain the unambiguous preliminary consent by any of its employees, agents or Third Parties, whose data the Client may enter or store in the Software, that their data may be transferred and stored on the territory of Australia or an alternative region agreed by explicit arrangement.
      6. The Client acknowledges that Capsifi does not control the content, entered by the Client, and has no knowledge that the Client may enter Third Parties’ personal data in the Software, also Capsifi has no contact with such Third Parties, whose personal data the Client may enter in the Software. Therefore the Client accepts that it shall be the Client’s sole responsibility to take the necessary measures for protection of personal data, entered or stored by the Client in the Software, according to applicable law.
      7. Client’s using the Capsifi Cloud Hosting service understand that Australia may be considered as a third country lacking adequate protection and shall be responsible for forwarding this information to any Third Parties, whose information the Client may enter or store in the Software.
      8. The Client shall be liable and hold Capsifi harmless against any claims by Third Parties and shall compensate Capsifi for any penalties by competent authorities, compensations or expenses, paid or imposed in connection with the failure of the Client to provide such unambiguous consent and measures for protection of personal data as described above.
      9. If Client’s using the Capsifi Cloud Hosting service wish that the Client’s Data and the data of any third party, which may be entered during the use of the Software, will not be transferred and stored on the territory of Australia any more, the Client shall inform Capsifi and Capsifi shall take the necessary steps to direct the hosting of the Client to an alternative region agreed by explicit arrangement. The Client understands that such an amendment may cause temporary lack of service (for a period up to 24 hours) and Capsifi shall not be liable for any damages or lost profits of the Client during this period.

       


      Security

      Capsifi implements security procedures to help protect the Client’s Data from security attacks. However, the Client understands that use of the Hosted Services necessarily involves transmission of the Client’s Data over networks that are not owned, operated or controlled by Capsifi, and Capsifi are not responsible for any of the Client’s Data lost, altered, intercepted or stored across such networks. Capsifi cannot guarantee that its security procedures will be error-free, that transmissions of the Client’s Data will always be secure or that unauthorised third parties will never be able to defeat Capsifi’s security measures or those of Capsifi third party service providers.

       


      Service and Support

      1. Service Level
        For free Subscription Plans, Capsifi will fulfil service level agreements on a commercially reasonable efforts basis. For paid Subscription Plans, Capsifi guarantees that the Software will be available 99% of the time, 24 hours a day, 365 days a year. This Software availability guarantee does not cover services that are not directly delivered by Capsifi and whose availability is outside of Capsifi’s control: these include the availability of an Internet connection at the Client’s location, software or hardware problems that are affecting the Client’s computers, and others. The 99% uptime calculation does not include maintenance windows that are scheduled to occur at certain times, and are communicated to all Clients before they occur.
      2. Scheduled Downtime
        For paid Subscription Plans, Capsifi will use commercially reasonable efforts to give Client at least 24 hours prior notice of all scheduled outages of the Software.
      3. Support
        For free Subscription Plans, Capsifi will not provide any support to the Client, but the online help and other documentation may be available at the Website. For paid Subscription Plans, Capsifi will use its commercially reasonable efforts to provide standard support services to the Client in accordance with the Capsifi best practices in effect from time to time through: a) online help and other documentation available at the Website; b) via email by opening a support ticket at support@capsifi.com. When a support ticket is opened, Capsifi staff will use its commercially reasonable efforts to respond to it in a timely manner: a reply to the support ticket is typically provided within 12 (twelve) business hours.

       


      Independent Contractor

      1. The Client is an independent contractor and not an agent, employee, franchisee or partner of Capsifi.
      2. The Client does not have any authority to, and will not, create or assume any obligation, express or implied, on behalf of Capsifi.
      3. Nothing contained in these Terms of Use is intended to create, or does create, a joint venture or partnership or any other relationship between the Parties hereto other than the relationship of independent contractor between the Parties.

       


      Liability, Disclaimers and Indemnifications

      1. The Client shall defend, indemnify, and hold harmless Capsifi, from and against any claims, suits, liabilities, losses, fines, penalties, damages and expenses arising from:
        1. any acts or omissions of Capsifi or its agents or contractors in connection with these Terms of Use, which are not explicitly entered as Capsifi obligations, including, without limitation, where such Software or Services does not meet the Client’s manifested needs;
        2. any claim that the Software or Services infringes any patent, copyright, trademark or other proprietary right of any third party to the extent the such infringement arises from:
          1. alterations of the Software by the Client or any third party,
          2. Software modified by Capsifi for the Client in accordance with Client’s specifications or requests.
      2. Limitation and exclusion – To the maximum extent permitted by law and subject to clause 3, Capsifi:
        1. excludes all liability for:
          1. loss of all actual or anticipated profit, revenue, capital, goodwill, savings, data, customers, use and benefits;
          2. downtime costs, loss of or damage to reputation, Losses under or in relation to any other contract and Losses suffered or incurred by any third party;
          3. all indirect, special, exemplary or punitive or consequential Losses; and
          4. any other Loss that does not arise naturally (that is according to the usual course of things) from an event giving rise to the Loss;
        2. limits Capsifi liability to (at Capsifi’s option):
          1. in relation to goods, repairing or replacing the goods or paying the cost of having the goods repaired or replaced; and
          2. in relation to the Software or Services, re-supplying the Software or Services or paying the cost of having the Software or Services re-supplied; and
        3. limit Capsifi’s total cumulative liability for Losses in any Agreement Year to the amount of the Liability Cap for that Agreement Year.
      3. Exclusion of warranties and implied terms – To the extent permitted by law and subject to any express statements in this Agreement, all express or implied conditions, warranties, representations, guarantees, statements, terms and conditions relating to this Agreement are excluded. The Client acknowledges and agrees that the Client has not been induced to enter into this Agreement by any warranty or representation.
      4. Non-Excludable Provision – Nothing in these Terms of Use excludes, restricts or modifies any right or remedy, guarantee, warranty or other term or condition, which may at any time be implied or imposed by any law, but which cannot be excluded.
      5. Indemnity by the Client – The Client (indemnifying person) agrees to indemnify Capsifi and Capsifi Personnel (each and all indemnified persons) from, and to hold each indemnified person harmless against, any loss, damage, liability, claim, cost or expense (including legal expense on a full indemnity basis) reasonably and properly suffered or incurred by any of the indemnified persons, including penalties or fines imposed by any regulatory authority and any damages and costs paid or payable (including solicitor Client legal costs) as a result of the Client or the Clients Personnel for breaching any of the obligations in these Terms of Use.

       


      Proprietary Rights

      1. The entire content on the Website, including all published texts, images, photographs, videos, articles, program code are copyrighted. They belong to Capsifi. The Client should not copy, store, process, publish, distribute in initial or processed form, or use in any other way texts, images, or other items contained within the Website. The Client is not entitled to access the source code of the Software and the Website and has no right to copy or modify it in any way. Any attempt by the Client for accessing, copying or changing the program code of the platform is considered as a violation of these Terms of Use and the rights of Capsifi. The Client shall ensure the agreement of its employees to respect copyrights and other intellectual property rights of Capsifi.
      2. The Client shall be only entitled to use the Software, as long as the Client pays monthly or annual subscription or until the termination of the service by Capsifi subject to these Terms of Use.
      3. Capsifi retains the rights to the Software and the Website, including the rights to market, license, make, reproduce, use, distribute and otherwise deal with the Software and the Website.
      4. Capsifi retains title to and ownership of the Software and all associated patent, copyright, trademark, trade secret and other intellectual property and proprietary rights; whether registered or unregistered in relation to inventions (including patents), and no title to or ownership of any or all of the same is transferred to the Client under these Terms of Use.
      5. Capsifi acknowledges and agrees that the Clients Materials remain at all times the Clients property.
      6. Nothing in these Terms of Use shall grant, or shall be construed as granting to the Client any rights (except for the Software license, specifically granted under these Terms of Use) or legal interest in any patents, copyrights, trade secrets, technical data, know-how, logos, trademarks, trade names, Capsifi Marks or other proprietary rights owned, used or claimed, now or in the future, by Capsifi or any subsidiary or affiliate companies. Capsifi reserves all such rights but grants to the Client a nonexclusive right during the Term to use the Software solely in accordance with such usage guidelines and product quality and other standards issued from time to time by Capsifi, provided that Capsifi’s ownership is acknowledged.
      7. The Client shall obtain Capsifi’s prior written consent to using any Capsifi Mark in any advertising and promotional material it generates.
      8. The Client shall not alter, remove, deface or obscure any notice of Capsifi Mark, patent, copyright, proprietary right or trade secret on the Software and shall not add to the Software and Documentation any other trademark. Any goodwill arising out of the Client’s use of any of the Capsifi Marks hereunder will inure solely to the benefit of Capsifi.
      9. Capsifi may give directions concerning the use of Capsifi´s trademarks, trade names and other symbols and the Client undertakes to follow such directions at all times. The Client’s right to use Capsifi’s trademarks, trade names and other symbols, if granted by Capsifi, will cease immediately upon the expiration or termination, for any reason, of the use of the Software.
      10. The Client shall give a written notice to Capsifi of any knowledge that may come to the Client concerning infringement of the trademarks or any other industrial and/or intellectual property rights of Capsifi that comes into the Client’s attention. In the event of any such infringement Capsifi may prosecute any action necessary to terminate such infringement.
      11. Publicity Rights
        Capsifi may identify the Client as a Capsifi customer in Capsifi promotional materials. The Client may request that Capsifi stop doing so by submitting an email to sales@capsifi.com at any time. Please note that it may take Capsifi up to 30 days to process the Client’s request.

       


      Termination

      1. Termination conditions
        1. If the Client fails to properly perform any of the obligations set forth in these Terms of Use, Capsifi may terminate the use of the Software immediately upon written notice to the Client.
        2. Either Party may terminate the use of the Software immediately upon notice if the other Party is or becomes insolvent, or files or suffers the filing against it of any petition in bankruptcy or other law for the protection of debtors.
      2. Effect of Termination
        Upon expiration or termination of the Term, all rights and obligations of the Parties shall cease, except that the Client shall not be relieved of its obligations to pay Capsifi any money due or to become due as of the date of expiration or termination.
      3. Termination of use of the Software will immediately terminate the rights of the Client to use the Software after such termination.
      4. Upon termination all of the following shall apply:
        1. The Client shall immediately cease use of the Software.
        2. Capsifi may disable all Client and Users access to the Software and Capsifi Materials.
        3. All amounts payable or accrued to Capsifi shall become immediately due and payable.
        4. In the event that the use of the Software is terminated by Capsifi without cause prior to the expiration of the Term, the total Fees paid by the Client will be prorated for the remaining months of the Term and the prorated amount shall be refunded to the Client. No refund shall be due, if Capsifi has terminated the use of the Software due to a failure of the Client to properly perform any of the obligations set forth in these Terms of Use or if the Client has terminated the use of the Software without cause.
      5. Deletion at End of Subscription Term
        Capsifi may remove or delete the Client’s Data within a reasonable period of time after the termination of the Client’s Subscription Term.
      6. Acknowledgement
        Any expiration or termination will be final and absolute. The Client waives any right, either express or implied by applicable law or otherwise, to renew the use of the Software, unless agreed to in writing by both Parties hereto, or for any damages or compensation directly related to any expiration or termination of the use of the Software.

       


      Force Majeure

      1. Neither Party shall be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of Force Majeure. Events of Force Majeure are events beyond the control of the Party which occur after the date of accepting these Terms of Use by the Client and which were not reasonably foreseeable at the time of accepting these Terms of Use by the Client and whose effects are not capable of being overcome without unreasonable expense and/or loss of time to the Party concerned. Events of Force Majeure will include (without being limited to) war, civil unrest, strikes, lockouts and other general labour disputes, acts of government, natural disasters, exceptional weather conditions, breakdown or general unavailability of transport facilities, accidents, fire, explosions and general shortages of energy.
      2. If either Party is affected by Force Majeure it will as soon as reasonably practical notify the other Party in writing, and take all reasonable steps to mitigate the effect of the Force Majeure. If an event of Force Majeure results in delay or non-performance of a Party for a period of three (3) months or longer, then either Party shall have the right to terminate the use of the Software or the Services with immediate effect without liability towards the other Party.

       


      Confidentiality

      1. Neither Party shall disclose to Third Parties nor use for any purpose other than for the proper fulfilment of its obligations any technical, financial or commercial information (“Confidential Information”) received from the other Party in whatever form under or in connection with the use of the Software without the prior express written permission of the disclosing Party.
      2. The above obligations shall not apply to Confidential Information which:
        1. was required by a competent authority or should be provided by the virtue of the law;
        2. was in the possession of the receiving Party prior to disclosure hereunder;
        3. was in the public domain at the time of disclosure or becomes part of the public domain without breach of the confidentiality obligations herein contained;
        4. was disclosed by a third party without breach of any obligation of confidentiality owed to the disclosing Party; or
        5. was independently developed by personnel of the receiving Party having no access to the Confidential Information.
      3. The provisions of this Clause shall bind the Parties for a period of three (3) years from the date of disclosure of any item of the Confidential Information regardless of any earlier termination, expiry or fulfilment of the use of the Software.
      4. The Client shall be obliged to provide confidentiality in respect of the Software’s source code and all its elements, methods of operation and functionality without any limitation in time and regardless of any termination of the use of the Software.
      5. The Client shall at all times protect and preserve the confidentiality of all proprietary technology, software, engineering data, schematics, and product designs, and all non-public business, financial, or marketing plans or information. No reproduction, use or disclosure of any such information shall be permitted without the prior written consent of Capsifi in each instance.
      6. The Client shall further assure that its personnel comply fully with such obligations of confidentiality.

       


      Headings

      Headings in these Terms of Use are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect these Terms of Use.

       


      Language

      All documents to be furnished or communications to be given or made under these Terms of Use will be in English or, if in another language, be accompanied by a certified translation into English which translation will be the governing version between the Parties.Neither Party shall disclose to Third Parties nor use for any purpose other than for the proper fulfilment of its obligations any technical, financial or commercial information (“Confidential Information”) received from the other Party in whatever form under or in connection with the use of the Software without the prior express written permission of the disclosing Party.

       


      Changes to this Agreement

      These Terms of Use may be amended from time to time. Capsifi may inform the Client for the changes made in a way, considered appropriate by Capsifi, including through the interface of the Software. If the Client does not agree with the amendments, the Client must inform Capsifi within ten days of the notification, otherwise the changes shall be considered accepted and obligatory.

       


      Non-Contravention

      The Client declares that use of the Software by the Client does not and will not violate any law, order, judgment or decree.

       


      Representations

      The Client represents and warrants to Capsifi that the Client has the necessary capacity to accept and fulfil these Terms of Use and to perform each and every one of the obligations assumed by virtue of the same, in such a way that the obligations arising from these Terms of Use and of any other in the execution of the same are valid and binding for the Client and enforceable against the same.

       


      Assignment

      The Client shall not assign or transfer the use of the Software or any interest or right hereunder, or subcontract or delegate the performance of any of its obligations hereunder to any third party, without the prior written consent of Capsifi, which consent may be withheld in Capsifi’s sole discretion.

       


      Modifications

      These Terms of Use may be amended from time to time by Capsifi.

      If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you (for example, by sending an email to the billing or technical contact, posting on our website, or in the Software itself). If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to free Subscription Plans, accepting the updated Agreement is required for you to continue using the free Subscription Plan. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use the free Subscription Software.

       


      Severability

      1. Whenever possible each provision of these Terms of Use shall be interpreted in such manner as to be effective and valid under applicable law.
      2. These Terms of Use is the entire agreement between Capsifi and the Client on the Customer Agreement subject matter and supersedes any proposal and any other arrangements, agreements, representations, understandings or statements (whether verbal, in writing, or in some other format).
      3. If there is any inconsistency or conflict between the provisions of any of these Terms of Use the order of precedence on which provisions shall prevail is:
        1. the Licence Schedule Capsifi and the Client have signed
        2. the Pilot Schedule Capsifi and the Client have signed
        3. the Coaching Services Schedule Capsifi and the Client have signed
        4. the Terms of Use including the Schedule 1 – Support, and the Schedule 2 – Coaching Services and Professional Services;
        5. the Scope of Work Capsifi and the Client have signed;
      4. Capsifi does not waive a right, power or remedy in connection with these Terms of Use if Capsifi fails to exercise or delays in exercising the right, power or remedy.
      5. If any portion of these Terms of Use is specifically determined by a court of competent jurisdiction to be invalid or unenforceable, such provision, to the extent that it shall be invalid or unenforceable, shall be considered separate and severable from these Terms of Use and any portion of such document or provision to the extent that it shall not be invalid or unenforceable shall not be affected and shall be valid and may be enforced to the full extent permitted by law.

       


      Notices

      All notices in connection with these Terms of Use will be in writing and may be delivered by courier or e-mail addressed to the other Party at its address set forth below, or to such other address as it will designate by like notice to the other Party. Notices, sent via email, shall be considered delivered, if the addressee has answered to the notice or has acknowledged its receiving. The effective date of any such notice will be the date on which it is received by the addressee.

      1. Notices to Capsifi:
        1. Address: Level 13, 61 York St, Sydney, NSW 2000, Australia.
        2. Email address: sales@capsifi.com;
        3. Contact person: Mr. Terry Roach.
      2. Notices to the Client: as indicated in the agreement or registration form of the Client.

       


      Acknowledgements

      The Client hereby acknowledges that it understands and accept the terms and conditions of each of the covenants set out in these Terms of Use and has entered into the same voluntarily and with full knowledge of the effect of such provisions and agree that the same are reasonable and shall be binding upon the Client in all circumstances.

       


      Dispute Settlement and Applicable Law

      1. If the Client has any issue in relation to these Terms of Use or the Service and Deliverables, the Client agrees to notify Capsifi in writing and use reasonable endeavours to resolve the matter through discussions with Capsifi before commencing any court proceedings.
      2. All unsettled matters and disputes shall be governed by and construed in accordance with the laws of New South Wales, Australia and shall be subject to the non-exclusive jurisdiction of the New South Wales courts.
      3. The Parties shall attempt to resolve any dispute arising out of or in connection with these Terms of Use amicably, by mutual agreement. Any dispute, controversy or claim will be finally settled by arbitration in accordance with the Australian Centre for International Commercial Arbitration (ACICA) Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of the arbitration shall be English.

       


      Schedule 1 – Support


      Hosting, Administration, Support and Maintenance

      The Client requests and we agree to provide Support for the support Term. Support is only available in respect of Supported Versions and is provided solely on our website, via email or telephone or in any combination thereof.

      Capsifi will log all problems with the software reported by the Client by email to the Help Desk contact email address detailed below. Upon identification of any Error, the Client shall provide Capsifi with enough information to investigate and attempt to reproduce the Error.

      Capsifi shall use all reasonable endeavors to correct any Error in the software, with a level of effort commensurate with the Error Severity Levels as determined by Capsifi, within the Resolution Time.

      As part of the Support, Capsifi will make Patches and Upgrades available to the Client within a reasonable time after their publication. Capsifi provide regular Upgrades with Patches as required. Support does not include any services to be performed on the Client’s premises or elsewhere outside of Capsifi’s premises, and the offering of any such services shall be at the sole option of Capsifi and subject to additional fees and charges to be agreed separately for each such situation.

      The provision of Support by Capsifi is contingent on the Client’s compliance with the following additional obligations:

      1. The Client’s Personnel shall have professional knowledge and experience of software products sufficient for proper interaction with Capsifi technical Personnel in matters of support of the software.
      2. The Client shall provide Capsifi Personnel with sufficient documentation, data, details and assistance with respect to any reported Errors so as to enable Capsifi to investigate and attempt to reproduce and verify the same as an Error.
      3. The Client shall assist Capsifi to diagnose and correct reported Errors by, providing reasonable access (on-site or remote as requested by Capsifi) to the applicable software, the hardware platform on which such software is installed and operating and all relevant documentation and records, and shall provide all reasonable assistance as Capsifi may request, including the provision of sample output and other diagnostic information.
      4. Self-hosted Client’s shall maintain a current backup copy of the Software and its data.
      5. The Client acknowledges and agrees that the Support fees are based on the application of the limitations described in these Terms of Use. The Client further acknowledges that the Client will be solely responsible for all maintenance and support of its own software, data and equipment as well as any third-party products it may be using in conjunction with the Software.

      Capsifi shall have no obligation to provide Support in connection with any Error, questions or problems that arise from:

      1. any modification, customisation, alteration or addition to the Software, or attempt thereof, made by the Client (excluding configuration changes to the Client’s model, or permitted by Capsifi’s prior written authorisation);
      2. use of the Software:
        1. in a manner other than described in Capsifi’s supporting materials or otherwise authorised by Capsifi
        2. in conjunction with Software, equipment, or an operating environment that was not the Operating Environment, or
        3. in any way not permitted under these Terms of Use;
      3. the negligence or intentional misconduct of any user of the Software;
      4. any patch or upgrade to the Operating Environment for Self-hosted Client’s, or other hardware or software, unless Capsifi has notified the Client of its support for such patched or upgraded Operating Environments;
      5. the malfunction of any element of the Operating Environment, third party products or hardware platform not caused or contributed to by Capsifi or the Software;
      6. failure by the Client within a reasonable period of time to implement reasonable recommendations in respect of or solutions to Errors previously advised by Capsifi; or
      7. changes to the Operating Environment, operating software or other hardware or software not authorised by Capsifi or inconsistent with the Capsifi’s supporting materials.

       


      Hosting Options

      Capsifi offers two hosting options; Capsifi Cloud Hosting, or Client Self-Hosting:

      Capsifi Cloud Hosting Service

      For Clients that use the Capsifi Cloud Hosting Service, software releases are managed by the Capsifi support team and are deployed on regular basis throughout the year, so the Client can take advantage of new and improved functionality that comes with every release.

      The Capsifi Cloud Hosting Service utilizes Amazon Web Services as its underlying infrastructure. The default region is Sydney but if the Client prefers another region the Client can consult with the Capsifi team.

      The Software uses multitenancy which enables Cloud Clients to share technology resources cost-efficiently and securely. Multiple tenants share a common infrastructure and access a set of highly secure services, with complete privacy from other tenants. The cloud resources are highly scalable, reliable, and future-proofed from infrastructure architecture changes. (If requested, the Client may be set up as a single dedicated cloud tenant – the pricing for this option is available on request).

      Client Self-Hosting

      Self-hosting Clients need to manage their own licenses for the underlying platform, and Capsifi works with the Client to establish arrangements for applying software releases.

      Capsifi offers Remote Server Administration services from qualified Capsifi staff to configure, install, tune, upgrade and patch the Jalapeno Server.

      Hosting Support and Administration Services are mandatory for Self-hosting customers; quoted on an annual basis, and are payable in advance on the anniversary of the license subscription.

       


      Support Services

      Capsifi Support Services cover Category 2 and 3 Support for product issues. Support Categories are defined as:

      1. Category 1
        Support for simple issues relating to the normal usage of the software.
        This category of support is provided by Capsifi Coaching Services (refer Coaching Services section above) and billed against Coaching Services contracts when they are in force and active. When there is no Coaching Services engagement in place, the Client is encouraged to maintain adequately trained Jalapeno Software “Super Users” who can provide Category 1 Support to the Client’s Personnel. Any other ad-hoc Category 1 User Support provided outside of a Coaching Services engagement will be billed at standard Coaching Services hourly rates.
      2. Category 2
        Support to users for Errors with the configuration and/or installation of a Jalapeno Server.
        Category 2 Support is provided to Self-hosting Clients by appropriate Capsifi Support staff and/or administrators depending on the Error type and Severity Level. Severity Levels and Response times are described in the table below.
      3. Category 3
        Support to users for product Errors in the Software.
        Category 3 Support is provided by appropriate Capsifi Support Personnel depending on the Error type and Severity Level. Severity Levels and Response times are described in the table below.

      Gaps in product functionality are not considered bugs. Functionality gaps may be scheduled into the product development roadmap at Capsifi’s discretion if they are deemed to be broadly required by a significant portion of Capsifi’s customers.

      Alternatively gaps not selected for inclusion in the roadmap may be quoted and contracted separately as a custom build at the discretion of Capsifi. Capsifi reserves the right to include specific features and changes to the Software, and to subsequently choose to migrate custom builds into the core product at Capsifi’s sole discretion.

      Remote Support

      For self-hosted Client installations; if a software release is provided or if software fix is necessary, the software release or software patch update can be provided to the Client by Capsifi Support. The software update can either downloaded from a secure facility by the Client’s personnel and the Client’s personnel then follow the instructions provided by Capsifi to apply the update, or alternatively the Client can provide remote access to Capsifi Personnel through a browser-based remote control feature, which is real-time and secure for this purpose.

      By remotely accessing the Client’s machine to troubleshoot Capsifi Software issues, Capsifi’s Personnel can obtain an immediate and clear view of the Client’s configuration and environment which can reduce the number of contact iterations and the time taken to resolve incidents, configure, and deploy fixes if needed.

      Software Maintenance

      Software maintenance provides unrestricted access to all Capsifi documentation, Upgrades, Patches and Fixes as they become available. The annual license subscription includes continuous software maintenance for the Software.

      Software Maintenance for self-hosted Client installations includes the cost for two annual software upgrades as well as regular application of Patches. The Client can either download the update from a secure facility and follow the instructions provided by Capsifi to apply the update, or facilitate remote access to Capsifi Personnel and Support Personnel for this purpose. Where this is not possible, on-site administration fees and travel costs will apply.

      Error Severity Levels

      The table below shows the response times in respect of the Error Severity Levels.

      Support Cases will be categorised and handled according to the assigned Error Severity Levels as set forth below. The case severity level will be determined at the time of case submission, and will be updated by Capsifi as follows:

      Error Severity Level Response Time Resolution Time – Temporary Fix or Workaround Resolution Time – Permanent Fix (Estimated)
      S1 within 12 Hours* 6 Hours* 48 hours*
      S2 within 12 Hours* 8 Hours* 5 Business Days*
      S3 within 1 Business Day* Not Applicable 90 Business Days*
      S4 within 5 Business Days* Not Applicable Considered for next Upgrade
      S5 within 5 Business Days* Not Applicable Considered for next Upgrade

      *Business Hours

      Help Desk Support

      Capsifi help desk provides support for Severity 1 and Severity 2 incidents, and notifications on software releases.

      Help Desk Contact Information

      Email: support@capsifi.com

      The method of communication is by email to the Help Desk contact email address above.

      Once a support case has been logged by email, a support ticket will be created and the Client will be notified by return email that the support request has been received. All communications with Capsifi customer support will be in English.

      Hours of Support

      Support will be provided during Business Hours.

      Issue Management and Escalation Problem Resolution

      The assigned Capsifi Support engineer will work on determining the nature of the incident. The engineer will work closely with the Client to assist in clarifying specific questions about the incident and if applicable, endeavour to recreate the incident within Capsifi. Once the cause has been identified, the Support engineer will provide a solution if one exists, or continue to work the incident by gathering any additional information (logs, dumps, etc.) in preparation for transfer to Capsifi’s Technical engineers.

      Capsifi’s Technical engineers will then work with the Support engineers and in some cases with the Client to resolve the incident. The resolution of the incident may be in the form of a Fix or Patch. Capsifi Support will use reasonable efforts in accordance to industry standards to achieve Capsifi’s Service Level Objectives for response times.

      If resolution of an incident does not meet the Client’s expectations, the Client may escalate to Capsifi’s Management Team. The Client may receive a named contact that will be responsible for owning the escalation through to resolution. This individual will be responsible for providing regular updates, focus and direction on the escalation. They will also be a central point of contact for the Client until the escalation is considered resolved. Capsifi will use its discretion to engage further Personnel if required.

      Product Support and Upgrades

      The Software is designed for cloud computing, so businesses can avoid the costs and complexity associated with the purchase, installation, configuration, and ongoing maintenance of an on-premises data center and dedicated hardware, software, and accompanying administrative staff.

      For Clients that use the Capsifi Cloud Hosting Service, software releases are managed by the Capsifi Support team and are deployed on regular basis throughout the year, so the Client can take advantage of new and improved functionality that comes with every release.

      For self-hosted Clients, software releases are managed by Capsifi’s Support team in consultation with the nominated support contact. For self-hosted Clients, supported releases are the latest major product release and one previous major product release.

      Capsifi provides release notes for each release.

      Currently the product lifecycle for the Software is:

      • Major Version Release 12 Months; and
      • Minor Version Updates 3-12 week cycles which may include new and improved functionality that adds value as well as minor Fixes.

      Capsifi retains the right to amend these indicative timelines at anytime without notice to the Client.

      Support will be provided during Business Hours.

       


      Schedule 2 – Coaching Services and Professional Services


      Coaching Services

      In Capsifi’s experience, most Clients are keen to be able to develop an internal Jalapeno Software skill set that helps to enhance the organisations flexibility and self-sufficiency in the on-going configuration and enhancement of their Jalapeno-based business solutions. Capsifi encourages and supports its Clients to invest in developing an in-house Jalapeno competency.
      The Software includes context sensitive help to walk the user through a functional process, reducing support overheads and minimising productivity loss.
      Capsifi Jalapeno Coaching Services are obligatory during the first 3 months to ensure that Client’s derive the value from purchasing a licence subscription. This can be supplemented by the purchase of additional Coaching or Mentoring packages.

       


      Scope of Coaching Services and Professional Services

      Capsifi will provide to the Client the Coaching Services or Professional Services specified in each Statement of Work (SOW) or Order Form (as applicable), subject to the Client’s payment of all applicable fees as set forth in the “Client Obligations” section of this Agreement.

      Capsifi shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any Coaching, Consulting or Training Services Capsifi provides (“Reference Materials”). Any Reference Materials provided to the Client may be used only in connection with the Software subject to the same use restrictions for the Software.

       


      Relationship to Software Services

      This schedule is limited to Coaching Services or Professional Services and does not convey any right to use the Software Services.

      The Client agree that the Client’s purchase of Coaching Services or Professional Services is not contingent on the delivery of any future Software Service functionality or features, other than Deliverables, subject to the terms of the applicable SOW or Order Form.

       


      Cooperation

      The Client will cooperate reasonably and in good faith with Capsifi in Capsifi’s performance of Coaching Services or Professional Services by, without limitation:

      1. Allocating sufficient resources and timely performing any tasks reasonably necessary to enable Capsifi to perform Capsifi’s obligations under each SOW or Order Form;
      2. timely delivering any materials and other obligations required under each SOW or Order Form;
      3. Timely responding to Capsifi’s inquiries or Capsifi’s Personnel inquiries related to the Coaching Services or Professional Services;
      4. Assigning an internal project manager for each SOW or Order Form to serve as a primary point of contact for Capsifi;
      5. Actively participating in scheduled project meetings;
      6. Providing, in a timely manner and at no charge to Capsifi, office workspace, telephone and other facilities, suitably configured computer equipment with Internet access, access to the Client’s appropriate and knowledgeable employees and agents, and continuous administrative access to the Client’s Online Service account, and coordination of onsite, online and telephonic meetings all as reasonably required by Capsifi; and
      7. Complete, accurate and timely information, data and feedback all as reasonably required.

       


      Delays

      Any delays in the performance of Coaching Services or Professional Services or delivery of Deliverables caused by the Client may result in additional applicable charges for resource time.

       


      Delivery, Acceptance and Change Orders

      1. Delivery of Services
        Capsifi will provide the Coaching Services or Professional Services, including any Deliverables, in accordance with the Agreement and the applicable SOWs or Order Forms.
      2. Acceptance
        1. Upon completion of each Deliverable under an SOW or Order Form, Capsifi will, as applicable:
          1. submit a complete copy to the Client; and
          2. at the Client’s request, demonstrate its functionality to the Client.
        2. The Client is responsible for reviewing and testing all Deliverables in accordance with such SOW or Order Form pursuant to any acceptance criteria or test plans mutually agreed upon in writing by the Parties for such Deliverable. The Client will provide Capsifi with written notification of acceptance for each Deliverable promptly upon acceptance; however, failure to reject a Deliverable, as set forth below, will be deemed acceptance.
        3. If the Client, in the Client’s reasonable and good faith judgment, determines that any submitted Deliverable does not satisfy the agreed-upon acceptance criteria as specified in the applicable SOW or as mutually agreed upon in writing by the Parties for such Deliverable, the Client must so notify Capsifi in writing within 10 business days after Capsifi’s submission of the Deliverable, specifying the deficiencies in detail. Capsifi will use commercially reasonable efforts to correct such deficiencies and resubmit the Deliverable to the Client as soon as practicable. The Client will again review and test the Deliverable against the agreed-upon acceptance criteria, and detail any deficiencies to Capsifi in writing within 10 business days after resubmission of the Deliverable.
        4. If a Deliverable fails to meet the functional requirements specified in the applicable SOW or Order Form after its second resubmission to the Client, the Client may either, as the Client’s sole and exclusive remedy:
          1. again reject the Deliverable and return it to Capsifi for further correction and resubmission in accordance with the process described above (if the Deliverable is not accepted after two resubmissions, the matter will be escalated to the Client’s executive sponsor for the project associated with the SOW or Order Form and Capsifi’s Engagement Manager), or
          2. terminate the relevant SOW or Order Form immediately upon written notice and recover all Coaching Services and Professional Services fees paid under such SOW or Order Form for such deficient Deliverable. If the Parties determine that a Deliverable’s functional requirements specified in a SOW or Order Form require modification (for example, due to incorrect assumptions or changed requirements), they will cooperate in good faith to execute a Change Order for such revised requirements.
      3. Change Orders
        Changes to a SOW or Order Form will require a written Change Order signed by the Parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.

 


Support

Where the Scope of Work or Change Order sets out that Capsifi will provide the Support, Capsifi will provide that Support in accordance with Schedule 1 – Support, and for the period the Client continues to license any Capsifi Software to which that Support relates.