Table Of Contents

GENERAL TERMS OF SERVICE

Welcome to CAPXEL LLC (“CAPXEL”, “we”, “us”, or “our”). These Terms of Service (“Terms”) govern your use of our website and services, including AI-driven marketing data services, provided by CAPXEL (the “Services”). By accessing or using our Services, you agree to be bound by these Terms. If you do not agree to these Terms, please do not use our Services.

1. Acceptance of Terms

By accessing and using the Services, you accept and agree to be bound by these Terms and our Privacy Policy, available at CAPXEL Privacy Policy. If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these Terms.

2. Services Description

CAPXEL provides a range of AI tools designed to enhance marketing efforts, including web traffic identification, customer data enrichment, audience segmentation, optimal avatar identification, and lead generation. We may place tracking tags on your website to collect traffic data and provide AI-driven insights to improve your business outcomes.

3. User Accounts

To access certain features of our Services, you may need to create an account. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete. You are responsible for maintaining the confidentiality of your account password and for all activities that occur under your account.

4. Payment Terms

Services may be offered on a subscription basis or as one-time payments, subject to a signed agreement. All payments must be made according to the terms specified in the agreement. Payments cannot be processed directly through the website and must be handled through the specified channels in the signed agreement.

5. Use of Services

You agree to use the Services only for lawful purposes and in compliance with all applicable laws and regulations. You may not:

• Use the data provided by CAPXEL in any AI training or development activities.
• Use the Services to distribute malicious software or engage in other harmful activities.
• Attempt to gain unauthorized access to any part of the Services or its related systems or networks.

6. Data Handling and Privacy

We handle user data in accordance with our Privacy Policy. Personal Identifiable Information (PII) is anonymized before being processed by our AI tools. You agree to handle any data obtained from our Services securely and in compliance with applicable data protection regulations.

7. Intellectual Property

All content and data generated by our AI tools are owned by CAPXEL. You are granted a non-exclusive, non-transferable, limited license to use the Services for your internal business purposes. You may not reproduce, distribute, or create derivative works from our content without our explicit permission.

8. User Responsibilities

You are responsible for:

• Ensuring that your use of the Services complies with all applicable laws and regulations.
• Handling data securely and according to established data management guidelines.
• Not using the data in any AI training, as it might be saved and used to train the AI.

9. Termination

Either party may terminate the agreement at any time with immediate effect. Any requests in progress at the time of termination will be completed unless the termination is due to a security or data breach issue, in which case all remaining deliveries will be halted immediately.

10. Dispute Resolution

Any disputes arising out of or relating to these Terms or the Services shall be resolved through binding arbitration in accordance with the rules of the American Arbitration Association. The arbitration will take place in Florida, and the decision of the arbitrator will be binding and enforceable in any court of competent jurisdiction.

11. Governing Law

These Terms are governed by the laws of the State of Florida, without regard to its conflict of laws principles. Any legal actions or proceedings related to the Services must be brought in the state or federal courts located in Florida.

12. Changes to Terms

CAPXEL reserves the right to modify these Terms at any time. We will notify you of any changes by posting the new Terms on our website. Your continued use of the Services after such changes have been posted constitutes your acceptance of the new Terms.

13. Contact Information

If you have any questions about these Terms, please contact us at:

CAPXEL LLC
Email: legal@capxel.com

CAPXEL TERMS OF SERVICE (ToS)

Effective Date: 1 Oct 2024

These Terms of Service (“ToS”) govern the use of services provided by CAPXEL LLC, a Florida company (“CAPXEL”), to the client identified in any applicable Order Schedule (“Client”). These ToS are incorporated by reference into the CAPXEL Master Services Agreement (MSA) and other agreements executed between CAPXEL and the Client.

1. Definitions

In addition to the definitions provided in the MSA, the following terms apply:

• AI Services means any artificial intelligence or machine learning-based features, tools, or services provided by CAPXEL, including but not limited to INSPEX and any other AI tools that CAPXEL may develop or utilize in the future.
• Authorized User means any person or entity authorized by client to use the capxel services pursuant to the license granted under this agreement.
• BACKTRAX Data means audience segments and related data proprietary to CAPXEL, including without limitation any personally identifiable information or other end user data of individuals (e.g., name, address, email, device information, etc.) from CAPXEL’s BACKTRAX database and other third-party databases, that is provided by CAPXEL to Client. 
• CAPXEL Data means all analytics, data, and information created, received or processed by CAPXEL in performing the CAPXEL Services, or that result from performance of the CAPXEL Services, but excluding Client Data. For clarity, BACKTRAX Data is CAPXEL Data.
• CAPXEL Platform means CAPXEL’s propietary data management platform (or any third-party platform CAPXEL may use for data management) and it’s internal systems, processes and AI used to identify, enrich the data of, and market to consumers.
• CAPXEL Services means the products and/or services that are provided by CAPXEL pursuant to an applicable Order Schedule, including without limitation, the CAPXEL Technology, the provision of CAPXEL Data, AI Services and any user manuals or other written materials created by CAPXEL to describe the functionality and use of CAPXEL Services (the "Documentation").
• CAPXEL Technology means all ideas, concepts, inventions, systems, platforms, software, interfaces, APIs, designs, tools, utilities, templates, materials, content, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by CAPXEL in providing the CAPXEL Services but excluding Client Data and Client Materials.  For clarity, the SPYBOX, LANDMARX, INSPEX and CAPXEL Platform are CAPXEL Technology.
• Client Data means all end user data that is provided or made available by Client to CAPXEL in connection with the CAPXEL Services, including without limitation any device level data (e.g., cookie id, device id, IP address, user agent string, and time stamp), audience segmentation data, and metadata relating to end users of Client Properties.
• Client Materials means any and all content or material that is provided or made available by Client to CAPXEL in connection with the CAPXEL Services other than Client Data, including without limitation any and all data, information, links, text, images, works of authorship, and other materials and content to be used in connection with Data Services.
• Client Properties means online properties (such as websites) owned or operated by Client, or with respect to which Client is legally authorized to make use of the CAPXEL Services.
• Data Services means services that are provided by CAPXEL pursuant to a mutually executed Order Schedule.
• Deliverables means any original works of authorship, content or materials which are created by CAPXEL exclusively for Client and which are delivered to Client in the course of performing Data Services.
• Documentation means any user guide, help information and other documentation and information regarding the CAPXEL Services delivered or otherwise made available by CAPXEL to Client, including any updates provided by CAPXEL from time to time.
• INSPEX means CAPXEL’s proprietary AI for analyzing, segmenting and understanding large consumer data sets while providing actionable insights and suggestions.
• LANDMARX means a proprietary location-based consumer identification technology that uses mobile devices to facilitate the identification of individuals that enter a specific marked area.
• SPYBOX means CAPXEL's proprietary pixel tag. Any software (including third-party software) that is accessed by, or distributed or provided to, Client hereunder (including without limitation any cookie or application programming interface but excluding for clarity the CAPXEL Platform) shall be deemed a part of "SPYBOX" for the purposes of this Agreement.

2. Services

2.1. Provision of Services

CAPXEL provides AI-driven data management, analytics, audience segmentation, and marketing tools (“CAPXEL Services”) as detailed in the MSA and any applicable Order Schedules. These services may utilize Third-Party Services to deliver the CAPXEL Services to the Client.

2.2. Service Modifications

CAPXEL reserves the right to modify, enhance, or discontinue any CAPXEL Service or the CAPXEL Platform at any time. If such modifications materially affect the Client’s use of the services, CAPXEL will provide at least ten (10) days' prior written notice, allowing the Client to terminate the applicable Order Schedule or this Agreement if desired.

2.3. AI Services Usage

CAPXEL may utilize AI Services in connection with the CAPXEL Services. Client acknowledges and agrees that outputs, suggestions, or results generated by AI Services are for informational purposes only and do not guarantee specific outcomes.

2.4. Continuous Improvement

CAPXEL is committed to continuously improving its services. Client acknowledges that CAPXEL may update or enhance services periodically, which may result in changes to service features, functionalities, or performance.

3. Payments

3.1. Fees

Client agrees to pay all fees and expenses as specified in each applicable Order Schedule, including any setup fees, subscription fees, and usage-based charges.

3.2. Payment Methods

Client may pay via ACH or credit card. Additional processing fees may apply for credit card payments, as detailed in the MSA.

3.3. Payment Terms

Due Date: Payment is due upon receipt of invoice.

Late Payments: Late payments will incur a charge of 1.5% per month or the highest amount permitted by law.

Automatic Payments: As long as an Order Schedule remains in effect, CAPXEL may automatically charge the Client’s credit card or debit the Client’s bank account for all applicable Fees.

3.4. Taxes

Fees are exclusive of applicable taxes. Client is responsible for all sales, use, and other taxes, except taxes based on CAPXEL’s net income.

3.5. Additional Fees

Services such as PROSPEX (purchasing leads) incur additional fees. The Client will not receive these services until the associated invoice is paid in full, as detailed in the MSA.

4. Confidentiality

4.1. Confidential Information

“Confidential Information” includes all non-public information disclosed by either party to the other, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information.

4.2. Obligations

Each party agrees to:

Protect the other party’s Confidential Information with at least the same degree of care it uses to protect its own Confidential Information, but not less than reasonable care.

Use Confidential Information solely to perform obligations under this Agreement.

Not disclose Confidential Information to any third party without prior written consent, except as required by law.

4.3. Exceptions

Confidential Information does not include information that:

• Is or becomes publicly known through no breach of this Agreement.
• Is received from a third party without breach of any obligation of confidentiality.
• Is independently developed without use of the other party’s Confidential Information.

4.4. Non-Disparagement

Both parties agree not to disparage each other or make any negative statements about each other’s business practices, products, or services.

4.5. Compelled Disclosure

If a party is required by law to disclose Confidential Information, it must promptly notify the other party to allow for protective measures and cooperate in limiting the disclosure.

5. Data Protection & Privacy

5.1. Compliance with Data Protection Laws

Both parties agree to comply with all applicable data protection laws and regulations, including GDPR, CCPA, and any other relevant laws.

5.2. Data Processing Agreement

If required, the parties will enter into a separate Data Processing Agreement (DPA) outlining specific data processing obligations and responsibilities.

5.3. Data Security

CAPXEL will implement appropriate technical and organizational measures to protect Client Data against unauthorized access, loss, or destruction.

5.4. Client Obligations

Client must obtain all necessary consents for CAPXEL to process personal data under this Agreement and ensure that any use of CAPXEL Data complies with applicable data protection laws.

5.5. CAPXEL Data Use

CAPXEL may use Client Data to improve and operate CAPXEL Services and provide aggregated, anonymized data insights. CAPXEL will not use PII without anonymization or de-identification.

6. Proprietary Rights

6.1. Ownership

CAPXEL retains all rights, title, and interest in and to the CAPXEL Services, CAPXEL Data, and CAPXEL Technology. Client retains ownership of Client Data and Client Materials.

6.2. License to Client Data

Client grants CAPXEL a perpetual, irrevocable, worldwide, non-exclusive, royalty-free license to use, reproduce, modify, and distribute Client Data solely in connection with providing the CAPXEL Services and for CAPXEL’s lawful business purposes.

6.3. License to CAPXEL Data

CAPXEL grants Client a limited, non-exclusive, non-transferable license to use CAPXEL Data for internal business purposes, as outlined in the applicable Order Schedule(s).

6.4. Deliverables

All Deliverables created by CAPXEL for the Client, excluding any incorporated CAPXEL Technology, shall be the property of the Client. CAPXEL grants the Client a non-exclusive, royalty-free license to use any CAPXEL Technology embedded within Deliverables solely for the Client’s lawful business purposes.

6.5. Restrictions

Client shall not use CAPXEL’s Confidential Information to create similar services, reverse-engineer CAPXEL Technology, or engage in any activity that infringes upon CAPXEL’s proprietary rights.

7. Warranties and Disclaimers

7.1. General Warranties

Each party represents and warrants that it has the authority to enter into this Agreement and that its execution does not violate any other agreement.

7.2. Client Warranties

Client warrants that it has the necessary rights to provide Client Data and Client Materials and that their use in accordance with this Agreement does not infringe on any third-party rights.

7.3. CAPXEL Warranties

CAPXEL warrants that it owns or has obtained all necessary rights to provide the CAPXEL Technology and Services.

7.4. Disclaimer of Warranties

TO THE FULLEST EXTENT PERMITTED BY LAW, CAPXEL PROVIDES THE SERVICES “AS IS” AND DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND DATA ACCURACY.

7.5. Data Disclaimer

CAPXEL DOES NOT WARRANT THE COMPLETENESS, ACCURACY, OR CONSISTENCY OF ANY DATA PROVIDED AS PART OF THE CAPXEL SERVICES. CLIENT ACKNOWLEDGES THAT DATA MAY CONTAIN GAPS OR ERRORS.

7.6. AI Services Disclaimer

CAPXEL DOES NOT WARRANT THAT AI SERVICES WILL BE ERROR-FREE OR COMPLETELY ACCURATE. CLIENT ACKNOWLEDGES THAT AI-GENERATED OUTPUTS MAY CONTAIN ERRORS OR BIASES.

8. Indemnification

8.1. Client Indemnification

Client agrees to indemnify, defend, and hold harmless CAPXEL, its affiliates, and their respective directors, officers, employees, and agents from and against any third-party claims, liabilities, damages, losses, and expenses arising out of or related to:

• Client’s use or disclosure of the CAPXEL Services, CAPXEL Technology, CAPXEL Data, or Client Data beyond the scope of this Agreement.
• Client’s breach of any terms of this Agreement.
• Any Client Data or Client Materials provided to CAPXEL.
• Any third-party claims arising from Client’s advertising using CAPXEL Data.

8.2. Indemnification Procedures

• Notice: The indemnified party must promptly notify the indemnifying party in writing of any claim.
• Control of Defense: The indemnifying party shall have sole control over the defense and settlement of the claim.
• Cooperation: The indemnified party shall cooperate fully in the defense of the claim.

9. Limitation of Liability

9.1. General Limitation

IN NO EVENT SHALL CAPXEL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS OR REVENUES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2. Liability Cap

EXCEPT FOR LIABILITY ARISING FROM SECTION 4 (CONFIDENTIALITY), SECTION 8 (INDEMNIFICATION), OR FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, CAPXEL’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL PLATFORM FEES PAID BY CLIENT IN THE PRECEDING ONE (1) MONTH.

9.3. Special Claims

FOR CLAIMS ARISING FROM SECTION 4 OR SECTION 8, CAPXEL’S TOTAL LIABILITY SHALL BE LIMITED TO TWICE THE PLATFORM FEES PAID IN THE PRECEDING ONE (1) MONTH.

10. Term and Termination

10.1. Term

This Agreement commences on the Effective Date and continues on a month-to-month basis unless terminated earlier in accordance with this section.

10.2. Termination Rights

Either party may terminate this Agreement by providing thirty (30) days' written notice before the end of the current monthly period. Additionally, either party may terminate immediately upon:

• Material breach by the other party that is not cured within thirty (30) days (or seven (7) days for non-payment) after written notice.
• Insolvency, bankruptcy, or similar proceedings against the other party.
• Change of Control of the Client, as defined in the MSA.

10.3. Effects of Termination

Upon termination:

• Client shall pay all outstanding fees for services rendered up to the termination date.
• Client shall return or destroy all CAPXEL Confidential Information.
• Client’s access to CAPXEL Services and CAPXEL Data shall cease, though Client may retain and use any data already provided.
• Obligations regarding Confidentiality, Proprietary Rights, Indemnification, Limitation of Liability, and other surviving provisions shall continue.

11. General Provisions

11.1. Governing Law and Venue

This Agreement shall be governed by the laws of the State of Florida, USA, without regard to its conflict of laws principles. Exclusive jurisdiction and venue for any disputes shall be the state or federal courts located in Pinellas County, Florida.

11.2. Dispute Resolution

In the event of a dispute, the parties agree to attempt to resolve the matter through good faith negotiations before pursuing litigation.

11.3. Notices

All notices under this Agreement must be in writing and delivered to the respective addresses provided in the MSA or as otherwise specified. Notices are deemed received based on delivery method:

Personal Delivery: Upon receipt.

Facsimile: When electronically confirmed.

Overnight Delivery: The day after being sent.

Certified Mail: Upon receipt.

11.4. Force Majeure

Neither party shall be liable for any failure or delay in performing its obligations due to causes beyond its reasonable control, including natural disasters, war, or other force majeure events. The affected party must notify the other party promptly and may have its performance obligations extended for the duration of the delay.

11.5. Assignment

Neither party may assign its rights or obligations under this Agreement without the other party’s prior written consent, except that CAPXEL may assign this Agreement to a successor in the event of a merger or acquisition.

11.6. Non-Solicitation

During the term of this Agreement and for one (1) year thereafter, neither party shall directly or indirectly solicit or hire any employee or consultant of the other party without prior written consent, except where such employees seek employment independently.

11.7. Independent Contractors

The parties are independent contractors. Nothing in this Agreement shall be construed to create an employer-employee relationship, partnership, or joint venture between the parties.

11.8. Entire Agreement

This Agreement, along with the MSA and any applicable Order Schedules, constitutes the entire agreement between the parties and supersedes all prior agreements, understandings, or communications, whether written or oral, related to the subject matter.

11.9. Severability

If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.

11.10. Language

This Agreement is executed in English. In the event of any translation, the English version shall prevail.

11.11. Amendments

Any amendments or modifications to this Agreement must be in writing and signed by both parties.

11.12. Waiver

Failure to enforce any provision of this Agreement shall not constitute a waiver of that provision or the right to enforce it in the future.

12. Non-Disparagement

Both parties agree not to make any negative or disparaging remarks about each other, their affiliates, employees, directors, officers, or agents, whether orally or in writing, including through electronic communications and social media.

13. Feedback and Improvements

Client may provide CAPXEL with feedback or suggestions regarding the CAPXEL Services. By providing such feedback, Client grants CAPXEL a non-exclusive, royalty-free, perpetual, irrevocable license to use and incorporate the feedback into CAPXEL’s products and services without any obligation to the Client.

14. Data Protection & Privacy

14.1. Compliance with Data Protection Laws

Both parties agree to comply with all applicable data protection laws and regulations, including GDPR, CCPA, and any other relevant laws.

14.2. Data Processing Agreement

If required, the parties will enter into a separate Data Processing Agreement (DPA) outlining specific data processing obligations and responsibilities.

14.3. Data Security

CAPXEL will implement appropriate technical and organizational measures to protect Client Data against unauthorized access, loss, or destruction.

14.4. Client Obligations

Client must obtain all necessary consents for CAPXEL to process personal data under this Agreement and ensure that any use of CAPXEL Data complies with applicable data protection laws.

14.5. CAPXEL Data Use

CAPXEL may use Client Data to improve and operate CAPXEL Services and provide aggregated, anonymized data insights. CAPXEL will not use PII without anonymization or de-identification.

15. Audit Rights

CAPXEL reserves the right to audit Client’s compliance with the terms of this Agreement, particularly regarding the use of CAPXEL Data and Services. Such audits will be conducted during regular business hours and will not unreasonably interfere with Client’s operations. If the audit reveals non-compliance, Client may be responsible for the costs of the audit.

By continuing to use CAPXEL Services, the Client acknowledges and agrees to these Terms of Service.

For any questions or concerns, please contact CAPXEL at legal@capxel.com.