The Terms and Service Agreement of Captivate Designs, a New York State Corporation, is hereby published and enforceable in all terms as outlined here. As a Client of Captivate Designs, you agree to be bound by all the terms and conditions set forth herein and published below.

I. General Services of Captivate Designs

Captivate Designs is an Internet-based business offering the following specific services: Logo and Stationery Design, Brochure Design, Postcard Design, Website Design, Web Hosting, Postcard Design and Internet Marketing (SEO), plus ongoing relevant support services to contracted clients.

Captivate Designs shall provide you and/or your company, as its Client, the Services contracted per the Package(s) you have selected as detailed in Section Four (IV) below.

II. Definition of Client

Captivate Designs herein notifies individuals who contract their services that they will be considered authorized representatives of the company and/or business for which they hold themselves to be affiliated. Upon ordering or contracting the services of Captivate Designs via email, telephone, fax or regular U.S. Postal Mail, you hereby agree to be bound by all the terms and conditions herein.

III. Right of Refusal

Captivate Designs, in its sole discretion, reserves the right to prescreen, reject or terminate service to any prospective client or contracted client in the event that it deems its project to be objectionable to any individual or group of individuals, or illegal in any nature. Right of Refusal Provision applies specifically to, but is not limited to, the following: material that Captivate Designs determines to be obscene, pornographic, defamatory, libelous, promotes racial/ethnic hatred, religious intolerance, or discrimination and/or hatred against any individual or group of individuals based upon sexual orientation or political preference. Additionally, Right of Refusal applies to projects which are deemed to be an attempt to disenfranchise the civil liberties of any individual and/or group of individuals. Captivate Designs furthermore reserves the right, in its sole discretion, to report to the appropriate legal authorities, any information to which it is privy that constitutes illegal activity, and to cooperate in full with legal authorities when and if required by law to access, preserve or disclose any information within its possession in order to protect the rights or personal safety of itself as a company, its users, and or the public in general.

IV. Captivate Designs Service Packages

Captivate Designs currently offers the following Service Packages and reflects its rates below in U.S. Dollars:

  A. Logo and Stationery Design Packages

     i. Silver $299 - 3 Concents/6 Revisions + 1000 Free Business Cards

     ii. Elite $549 – 6 Concepts/Unlimited Revisions + 1000 Free Business Cards

     iii. Prestige $625 – 6 Concepts/Unlimited Revisions + 1000 Free Business Cards
         * Stationery Included

  B. Brochure Design Packages

     i. Tri-Fold (1 Page/2 Sides) $600 – 2 Concepts/Unlimited Revisions

     ii. 4-Page Exec (4 Pages) $1050 – 2 Concepts/Unlimited Revisions

     iii. 8-Page Exec (8 Pages) $1500 - 2 Concepts/Unlimited Revisions

     * Client - Copy/Content for All Brochure Packages
     * Captivate Designs - Free Stock Photos for All Brochure Design Packages

  C. Postcard Design Packages

     i. 4” x 6” Format $350– 2 Concepts/Unlimited Revisions

     ii. 5.5” x 8” $650 2 Concepts/Unlimited Revisions

     * Client - Copy/Content for All Postcard Design Packages
     * Captivate Designs - Free Stock Photos for All Postcard Design Packages

  D. Web Design Packages

     i. Superior $999 - 5 Pages - Flash Intro HP - 2 Concepts/Unlimited Revisions - HTML

     ii. Elite $1499 – 10 Pages - Flash Intro HP - 2 Concepts/Unlimited Revisions – HTML

     iii. Prestige $1899 – 15 Pages – Flash Intro HP - 2 Concepts/Unlimited Revisions – HTML

     * Client Provides Copy/Content for All Web Design
     * Captivate Designs Provides Free Stock Photos from Our Stock Photo Library for All Web         Design Packages. Clients also have the Option to Purchase Royalty Free Images from         Third Party Providers.
     * Captivate Designs Provides Free Lifetime Web Design Maintenance on a Once Per         Month Basis, Not to Exceed One (1) Hour. Maintenance Requiring More than One (1)             Hour will be Billed at the rate of Seventy-Five ($75.00) Per Hour in Fifteen (15) Minute         Increments.

  E. Web Hosting Packages

     i. Superior $13.99 – 5 Disk Storage – 250 Data Transfer – 10 SQL Database – 500         Mailboxes – 24x7 FTP Access – 24x7 Phone Support – Web Site Statistics

     ii. Elite $21.99 – 100 GB Disk Storage – 1000 GB Data Transfer – 25 SQL Database –         1000 Mailboxes – $25 Google AdWords Credit - 24x7 FTP Access – 24x7 Phone Support         – Web Site Statistics

     iii. Prestige $34.99 - 200 GB Disk Storage – 2000 GB Data Transfer – 50 SQL Database –         2000 Mailboxes – $25 Google AdWords Credit - 24x7 FTP Access – 24x7 Phone Support         – Web Site Statistics

  F. Internet Marketing – Search Engine Optimization (SEO)

     i. $200 Per Month – 6 Month Commitment Required

     ii. Custom E-mail Newsletters - $499

V. BILLING and PAYMENT of FEES

  A. Service Package Billing and Payment

Upon selection of your Captivate Designs Service Package, you will be required to make advance payment in full. Clients may be given the opportunity to purchase a package with 50% down and 50 % after completion, prior to the delivery of files.

We currently accept payment via MasterCard, Visa, Discover, American Express, Checks, and also via PayPal, a secured payment merchant. If you choose to pay via credit card, you will be required to submit a valid credit card number and a valid billing address, and your charges will be reflected in detail on your credit card statement. When paying via PayPay, you will be required to submit a valid PayPal account username, and your charges will be reflected in the details of your PayPal account. Captivate Designs will also provide all clients with a receipt acknowledging payment via e-mail.

  B. Taxes

Client will render payment or shall reimburse Captivate Designs for any and all taxes and/or duties for any and all sales, usage, transfer, privilege, excise fees, whether local, state, federal and/or international, which are levied or imposed upon Captivate Designs by reason of its performance under this Agreement, with exclusion for income taxes or gross receipts taxes, which may be levied against Captivate Designs, with such taxes having the potential for being reflected on Client invoices.

  C. Late Fees

For instances in which Captivate Designs extends alternative payment arrangements to a Client, Captivate Designs shall impose a Late Fee should Client enter into default of payment terms as outlined herein: Captivate Designs shall have the right to access late charges in an amount equal to the greater of Five (5%) Percent per month or the maximum allowable under applicable law AND shall have the right to suspend access to any and/or all of the Captivate Designs Services and/or performance of the Services performed on Client’s behalf by Captivate Designs hereunder AND shall have the right to terminate this Agreement. Termination and/or Suspension shall not relieve Client from the responsibility of payment for any and all outstanding fees, plus interest and/or late fees. Furthermore, Client shall be responsible for paying any costs associated with the collection of such fees, including, but not limited to legal costs, attorneys’ fees, court costs and/or collection agency fees.

VI. REFUND POLICY

  A. Design Services Refunds

Captivate Designs offers its Clients a One Hundred (100%) Percent Money Back Guarantee with Twenty-Four (24) Hours of Client’s receipt of prototype(s) for design services provided Client provides Captivate Designs with written notification via email within said 24-hour period.

  B. Web Hosting Services Refunds

Captivate Designs offers it Clients a One Hundred (100%) Percent Money Back Guarantee within Thirty (30) Days for web hosting services provided Client delivers written notification via email within said 30-day period.

  C. Search Engine Optimization Services Refunds

Captivate Designs is not affiliated with any Search Engines and does not have control over organic searches. Furthermore, Captivate Designs makes no guarantees that its Internet Marketing (SEO) Services will result in the generation of customers and therefore cannot provide refunds for such services.

VII. TURNAROUND TIME for SERVICES

  A. Web and Graphic Design

Captivate Designs guarantees a Two to Three (2 – 3) Week turnaround time for all web and graphic design projects. However, this guarantee is provisional, based upon Client’s prompt and timely response, feedback and continuous cooperation. In the event Client fails to respond within a reasonable period of time, Captivate Designs reserves the right to cease and desist all work with regard to completion of said project. Client shall be responsible for providing all deliverables setforth herein upon purchase of any package.

  B. Internet Marketing Services

Captivate Designs guarantees Internet Marketing Services within Seventy-Two (72) Hours of Client’s purchase of such services.

VII. LIMITED WARRANTIES

  A. Client Warranty

Client represents and warrants to Captivate Designs the following facts to be true and accurate:

a) Client has the authority to enter into this Agreement and perform its obligations under this Agreement.
b) Client and its Authorized Users will only use the Captivate Design Services for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party.
c) Client warrants that it is not located in a country in which export or re-export of the contents of information transmitted via the Internet is prohibited.

  B. Captivate Designs Warranty

Captivate Designs warrants the following facts to be true and accurate:

a) Captivate Designs is authorized to enter into this Agreement and to perform the obligations hereunder.
b) Captivate Designs will perform all work contracted and governed by this Agreement with professionalism and in compliance with all the terms outlined herein.

VIII. WARRANTY DISCLAIMERS and LIMITATION OF LIABILITY

YOU AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION EIGHT (8) ARE REASONABLE AND ARE FUNDAMENTAL ELEMENTS OF THE AGREEMENT BETWEEN YOU AND CAPTIVATE DESIGNS. YOU ACKNOWLEDGE THAT CAPTIVATE WOULD NOT BE ABLE TO PROVIDE THE SERVICES ON AN ECONOMIC BASIS WITHOUT SUCH DISCLAIMERS AND LIMITATIONS.

CAPTIVATE DESIGNS PROVIDES THE SERVICES AND THE LICENSED MATERIAL TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. CAPTIVATE DESIGNS MAKES NO EXPRESS WARRANTIES OF ANY KIND AND DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT REGARDING ANY SERVICES OR ANY EQUIPMENT THAT CAPTIVATE DESIGNS MAY PROVIDE TO YOU OR REGARDING THE LICENSED MATERIAL. CAPTIVATE DESIGNS DOES NOT WARRANT THAT THE SERVICES, THE LICENSED MATERIAL OR THE USE OF EITHER WILL BE WITHOUT INTERRUPTION, ERROR-FREE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. CAPTIVATE DESIGNS MAKES NO WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THE LICENSED MATERIAL OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES, THE LICENSED MATERIAL OR THE INTERNET. CAPTIVATE DESIGNS IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM YOU OR STORED BY YOU OR ANY OF YOUR CUSTOMERS VIA THE SERVICES PROVIDED BY CAPTIVATE DESIGNS. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY CAPTIVATE DESIGNS, ITS EMPLOYEES, REPRESENTATIVES, AGENTS, AFFILLIATES OR CONTRACTORS WILL CREATE A WARRANTY, EXPRESS OR IMPLIED, NOR MAY YOU RELY ON ANY SUCH ADVICE OR INFORMATION. SOME STATES (UNITED STATES ONLY) DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. CONSEQUENTLY, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU TO THAT LIMITED EXTENT. YOU AGREE THAT, IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, THE LICENSED MATERIAL OR ANY EQUIPMENT THAT CAPTIVATE DESIGNS MAY PROVIDE TO YOU, ALL SUCH WARRANTIES WILL BE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE THE SERVICE COMMENCED OR THE LICENSED MATERIAL IS INSTALLED.

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS CAPTIVATE DESIGNS AND ITS SUBSIDIARIES AND AFFILIATES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, LOSSES, DAMAGES, COSTS AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES, RELATED TO OR ARISING FROM: (I) YOUR AND YOUR END USERS' USE OF THE SERVICES AND/OR THE LICENSED MATERIAL; (II) ANY VIOLATION OF THE AUP; (III) ANY LIABILITIES, CLAIMS, OR EXPENSES ARISING FROM YOUR REGISTRATION, ATTEMPT TO REGISTER, MAINTENANCE, INFRINGEMENT, OR PROTECTION OF A DOMAIN NAME AND THE RIGHTS ASSOCIATED WITH SUCH, (IV) ANY BREACH BY YOU ANY PROVISION OF THIS AGREEMENT; AND/OR (V) ANY ACTS OR OMISSIONS BY YOU.

  AND FURTHERMORE:

  A. Captivate Designs has no control over information published on and/or transmitted via the Internet and therefore bears no responsibility for any information received, read and/or reviewed by you.

  B. Client accepts full responsibility for the verification of the legitimacy, truth, legality and ownership of the information he/she disseminates or displays in connection with his/her use of the Services or attainment from the Internet.

  C. Client agrees that if Captivate Designs takes any correction action under this Agreement in response to Client or Client’s end users actions or failures to act, that said corrective action may adversely affect Client or Client’s end users and Client agrees that Captivate Designs shall have no liability to Client or Client’s end users due to any corrective action which Captivate Designs may take.

  D. Captivate Designs strongly recommends that Client backup his/her data regularly and that Captivate Designs has no obligation to backup any data relevant to Client’s web site unless Captivate Designs has entered into an exclusive written agreement with Client and has accepted payment from Client for data backup services. Client agrees to backup his/her data regularly regardless of any such agreement with Captivate Designs. Client further agrees that his/her failure to perform backup of data will alleviate his/her claim for damages that he/she may bring against Captivate Designs relating to any loss of his/her data.

Captivate Designs provides a server for your dedicated hosting services, which is accessible only to Client and is dedicated to his/her use. Client acknowledges that Captivate Designs frequently reuses and/or re-commissions its dedicated servers to accommodate changing client demands. Although Captivate Designs implements and follows standard hard drive data cleansing procedures, Client acknowledges that the server used to provide his/her dedicated hosting services may have been used to provide such services to previous Clients of Captivate Designs, and may be utilized in providing such services to future Clients of Captivate Designs. Based upon this fact, data or meta-data shadows have the potential for remaining physically upon the drive subsequent to cleaning even though the data is inaccessible minus the performance of extraordinary cleaning processes and/or procedures. Therefore, Captivate Designs is unable to offer a guarantee that deleted data will not be accessible to future Clients of Captivate Designs who will utilize the server for dedicated hosting services of current Clients. Client agrees that he/she will never reconstruct, reassemble, or recover, or attempt any of the aforementioned actions for the purpose of restoring any data previous saved on any hard drive provided for Client’s dedicated hosting services. Client shall be solely liable for any and all damages and/or losses to Captivate Designs and shall be required to indemnify Captivate Designs for any relevant third party losses arising from such a violation.

CLIENT AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HE/SHE WILL NOT, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD CAPTIVATE DESIGNS OR ITS LICENSORS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY HE/SHE, ANY OF HIS/HER END USERS OR ANY OTHER THIRD PARTY. CLIENT AGREES THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY AND APPLY EVEN IF CAPTIVATE DESIGNS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; CLIENT AGREES THAT IN THOSE JURISDICTIONS LABILITY OF CAPTIVATE DESIGNS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

CLIENT AGREES THAT HE/SHE WILL NOT HOLD CAPTIVATE DESIGNS OR ITS LICENSORS LIABLE UNDER ANY CIRCUMSTANCE FOR ANY DAMAGES THAT HE/SHE SUFFERS RESULTING FROM (I) THE USE OF OR INABILITY TO USE THE SERVICES OR LICENSED MATERIAL, (II) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, LOSS OR CORRUPTION OF DATA AND/OR BACK-UP DATA, FAILURE TO PERFORM DATA BACK-UP FUNCTIONS (OTHER THAN THOSE EXPRESSLY AGREED TO BY CAPTIVATE DESIGNS AND CURRENTLY PAID FOR BY CLIENT), ERRORS, VIRUSES, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, NON-DELIVERIES, MISDELIVERIES OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT CAUSED BY CAPTIVATE DESIGNS’ NEGLIGENCE, ACTS OF GOD, ANY FAILURE OF CAPTIVATE DESIGNS’ NETWORK OR SYSTEMS, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO CAPTIVATE DESIGNS’ RECORDS, PROGRAMS, EQUIPMENT OR SERVICES; (III) YOUR ACTS OR OMISSIONS; OR (IV) THE ACTS OR OMISSIONS OF THIRD PARTIES.

CLIENT AGREES THAT CAPTIVATE DESIGN’S MAXIMUM LIABILITY TO CLIENT UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, COSTS AND CAUSES OF ACTIONS FROM ANY AND ALL CLAIMS (WHETHER IN CONTRACT, TORT OR OTHER LEGAL THEORY) SHALL BE LIMITED TO THE TOTAL AMOUNT OF SERVICE FEES ACTUALLY PAID BY CLIENT TO CAPTIVATE DESIGNS, EXCLUDING SERVICES FEES FOR WEB HOSTING, WHICH SHALL BE LIMITED TO THE AMOUNT OF THREE (3) MONTHS HOSTING FEES.

ALL TERMS OF SECTION EIGHT (8) AS OUTLINED ABOVE SHALL REMAIN INTACT AND/OR ENFORCEABLE AND SHALL SURVIVE ANY TERMINATIONS OF THIS AGREEMENT.

IX. USAGE RESTRICTIONS

  A. Client’s use of the Services is subject to the Acceptable Usage Policy of Captivate Designs (CDUP), as revised periodically, and is incorporated herein by reference, and is also published on Captivate Designs’ web site at www.CaptivateDesigns.com. All terms of the CDUP shall prevail in the event of any inconsistencies between this Agreement and the CDUP.

  B. Captivate Designs has no intention of systematically monitoring the content submitted, distributed or disseminated by Client via the Services. Client’s content includes content of your end users and/or users of your web site. Client is thereby responsible for his/her end users' content and all activities on his/her web site. At its sole and exclusive discretion, Captivate Designs reserves the right to immediately take corrective action, including, but not limited to, removal of all or any portion of Client’s content and suspension and/or termination of Client’s Services, in the event of notice of any possible violation of the CDUP by Client and/or his/her end users. Client agrees that Captivate Designs shall have no liability to Client or to any of Client’s end users resulting from any corrective action taken by Captivate Designs, and that Client shall not be entitled to a refund of any fees paid in advance prior to the corrective action.

  C. Client warrants that his/her content does not violate the terms of or infringe upon any copyright, trademark, patent or intellectual or other proprietary property right of any third party or contain any obscene or libelous material or otherwise violate any law or regulation.

  D. Client’s use of networks or computer related resources provided to Captivate Designs by third party providers and made available to Client as part of the Services is subject to the respective permission and usage policies of such third parties.

  E. Client specifically: (i) grants a license to Captivate Designs to cache the entirety of his/her content and his/her web site, including content supplied by third parties and hosted by Captivate Designs under this Agreement, and (ii) agrees that such caching is not an infringement of any of his/her intellectual property rights or any third party's intellectual property rights.

  F. For instances in which Captivate Designs assigns an Internet Protocol address to Client, Client may use that Internet Protocol address only as expressly permitted by Captivate Designs in connection with Client’s use of the Services during the term of this Agreement. Captivate Designs shall maintain and control ownership of all Internet Protocol numbers and addresses that may be assigned to Client by Captivate Designs, also reserving the right, in its sole and exclusive discretion, to change or remove any and all such Internet Protocol numbers and addresses.

  G. Client agrees that he/she will not engage in excessive amounts of CPU processing on any of Captivate Designs’ servers. In its sole and exclusive discretion, Captivate Designs may take immediate corrective action, including, but not limited to, assessment of additional fees as warranted and suspension and/or termination of Services should Client be in violation of this policy. Client agrees that Captivate Designs shall have no liability to Client or to any of Client’s end users as a result of any correction action taken by Captivate Designs and that Client shall not be entitled to a refund of any fees paid in advance prior to the corrective action.

  H. Client agrees that he/she shall not use bandwidth and disk usage amounts exceeding the limits applicable to his/her Services as published on the Captivate Designs web site for the particular brand of Services you ordered ("Agreed Usage"). Captivate Designs will monitor Client’s bandwidth and disk usage, and in its sole and exclusive discretion, may take immediate corrective action, including, but not limited to, assessment of additional fees and suspension and/or termination of Services, in the event Client exceeds Agreed Usage. Client agrees that Captivate Designs shall have no liability to Client or to any of Client’s end users due to any corrective action that Captivate Designs may take and that Client will not be entitled to a refund of any fees paid in advance prior to the corrective action.

X. PROPRIETARY RIGHTS and TRADEMARKS

  A. Captivate Designs and other pending and/or registered trademarks and service marks, and other graphics, logos, and service names used by Captivate Designs in connection with the Services or other products or services offered by Captivate Designs and its subsidiaries and affiliates, to identify the products or Services of Captivate Designs or its subsidiaries and affiliates (collectively the “Captivate Designs Trademarks”) are the trademarks of Captivate Designs and its subsidiaries and affiliates. Client agrees not to use the Captivate Designs Trademarks in relation to his/her products or services, or any third-party’s products or services, or in any manner that disparages or discredits Captivate Designs. All other brands and names (including third-party product names) used in connection with the Services or other products or services offered by Captivate Designs and its subsidiaries and affiliates are the property of their respective owners.

  B. Captivate Designs hereby acknowledges that it claims no proprietary rights to Client’s Content or any intellectual property right contained therein. Client hereby acknowledges and agrees that Captivate Designs and its licensors own all right, title, and interest in and to: (a) the Services and any other products or services offered by Captivate Designs and its subsidiaries and affiliates; (b) the technology available to Client as part of the Services; (c) and all content, including but not limited to text, software, music, sound, photographs, video, graphics, or other material contained or maintained on the web sites maintained by Captivate Designs and its subsidiaries and affiliates (collectively “Captivate Designs Content”), excluding Client’s Content.

XI. LICENSURE

Section Eleven (XI.) Licensure applies to Client only if he/she utilizes software licensed to him/her with the Services he/she contracts, and is in addition to and not in lieu of all other Terms and Conditions governing Client’s Services.

  A. Captivate Designs, in connection with the Services) may provide the availability of certain technologies and/or software owned by Captivate Designs or third party providers, which may include corresponding documentation, relevant software applications, media, printed materials, and/or Internet and electronic documentation and all updates and upgrades thereto, which is hereby designated as and shall be referred to as the Licensed Material. Client agrees to the exclusivity in ownership of the Licensed Material by Captivate Designs and acknowledges that Licensed Material is projected by copyright laws and international copyright laws, plus other relevant intellectual property rights, laws and treaties.

  B. Captivate Designs grants to Client the non-exclusive right to install the Licensed Material on a single computer; or install and store the Licensed Material on a single storage device, such as a network server, used only to install the Licensed Material on Client’s other computers over an internal network, provided Client has a license for each separate computer on which the Licensed Material is installed and operated. Licensed Material is licensed only and is in no way sold to Client. Client’s license for the Licensed Material may not be shared, installed or used concurrently on different computers. In the event the Licensed Material is distributed along with other Licensed Materials of Captivate Designs as part of a suite of products, the license of the Suite is licensed as a single product and none of the products within the suite of products, including the Licensed Material, may be separated for installation or use on more than one computer.

  C. Client acknowledges the following requirements of Captivate Designs with regard to any and all Licensed Materials:

    i. Client is prohibited from removing and/or altering any copyright notices on any and all         copies of Licensed Material.

   ii. Client is prohibited from generating and/or distributing copies of Licensed Material to        third parties, including the electronic transfer of Licensed Material from one        computer  to     another or over a network of any kind.

    iii. Client is prohibited from modifying, adapting, altering, merging or translating the         Licensed Material, or the reverse engineering, disassemble or decompiling of Licensed         Material, with the exception and only to the extent that such action is specifically         permitted by applicable law, notwithstanding this limitation.

    iv. Client is prohibited from engaging in the modification of Licensed Material and/or the          creation of derivative products arising from use and access to Licensed Material.

    v. Client is prohibited from engaging in the sale, rental, leasing, lending, assigning,           transferring or sublicensing of Licensed Material.

    vi. Client must comply with all applicable laws governing use of Licensed Material.

  D. With regard to Licensed Materials, Captivate Designs may provide Client with Supportive Services. Client’s usage of Supportive Services shall be governed by the Terms of Service relevant thereto. Supplemental software codes provided to Client by Captivate Designs shall be deemed a portion of Licensed Material, and is therefore subject to the Licensure terms and conditions. In compliance with its Privacy Policy, Captivate Designs may use technical information you provide as part of the Support Services process.

  E. Captivate Designs may, in its sole and exclusive discretion, and minus any prejudice to any other rights contained herein, terminate Client’s License if Client fails to maintain compliance with the terms and conditions of License, in which case Client shall be required to destroy any and all copies of Licensed Material. All other rights of both parties and all other provisions of this License will survive any termination.

  F. The above described License provides Client Limited License for using Licensed Material, including, but not limited to, copyright and intellectual property rights, in and to the Licensed Material and copies thereof. All title and intellectual property rights in and to the content that may be accessed through use of the Licensed Material are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This License grants you no rights to use such content. Captivate Designs and its licensors reserve all rights not expressly granted.

  G. Captivate Designs provides Licensed Material with “RESTRICTIVE RIGHTS” only, which is applicable to both private and public licensees. Without limiting the foregoing, use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in this License and as provided in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.

  H. Client hereby agrees that he/she will not export or re-export the Licensed Material to any country, person, entity or end user prohibited by the United States Export Administration Act and the regulations promulgated thereunder. Countries currently under this restriction include, but may not be limited to the following: Afghanistan, Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria. Client represents and warrants that neither the United States Bureau of Export Administration nor any other federal agency has suspended, revoked or denied his/her export privileges.

  I. Captivate Designs hereby advises Client that Licensed Material may contain third party software requiring notices and/or additional terms and conditions. All required third party software notices and/or terms and conditions are made a part of and incorporated by reference into this License. Client hereby accepts all said additional terms and conditions, if any exist, as set forth herein upon his/her acceptance of this License.

XII. NOTICES

Client is responsible for providing Captivate Designs with a valid email address. Client is also responsible for advising Captivate Designs promptly regarding any and all changes to his/her contact information. Client hereby acknowledges that Captivate Designs bears no liability regarding misdirected or failed communications as a result of Client’s not having provided Captivate Designs with updated contact information.

Captivate Designs may deliver notice to Client required by this Agreement via email message to the email address provided by Client. Client agrees that notice sent to him/her at said email address is deemed sufficient notice, without regard to Client’s receipt and/or review of said email. Client must provide all notices to Captivate Designs in writing via email message to info@CaptivateDesigns.com or as modified by Captivate Designs via its online amendment or modification of this Agreement.

XIII. GENERAL PROVISIONS

  A. Assignment

Client agrees that he/she shall not assign or otherwise transfer this Agreement, in whole or in part, nor delegate or subcontract any of its rights or obligations hereunder, without the express, prior written consent of Captivate Designs, which consent may be withheld, delayed or conditioned in the sole discretion of Captivate Designs. Captivate Designs shall have the right to assign this Agreement, in whole or in part, to a third party at any time upon written notice to Client.

  B. FORCE MAJEURE

Neither Captivate Designs or Client party shall have any liability to the other or to third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control including, without limitation, acts of God or nature, actions of the government, fires, floods, strikes, civil disturbances or terrorism, or power, communications, satellite or network failures.

  C. Legal Jurisdiction

This Agreement shall be interpreted under the laws of the State of New York without regard to any conflict of laws provisions. Client hereby consents to the exclusive jurisdiction and venue of the state courts sitting in Kings County, New York or the federal courts, specifically, the United States District Court for the Eastern District of New York to resolve any disputes arising under this Agreement.

If any provision(s) of this Agreement is held to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with all other provisions of this Agreement remaining in full force and effect.

Captivate Designs' failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Captivate Designs in writing.

This Agreement, together with the order form, if any, you submitted via the Internet to order your Services, the CDUP, the Privacy Policy and all documents referenced herein and therein, comprise the entire agreement between you and Captivate Designs and supersedes all prior agreements between the parties regarding the subject matter contained herein. This Agreement shall apply to all additional products and services that you purchase from Captivate Designs or its subsidiaries and affiliates, whether or not you complete the acceptance process with respect to additional products and services (all such additional products or services purchased, also "Services"), and this Agreement will govern your purchase and use of all additional Services.

Client represents and warrants that, if he/she is an individual, that he/she is at least Eighteen (18) years of age, and that he/she has read this Agreement, including Captivate Designs’ CDUP, and that he/she agrees to be bound by the terms and conditions as set forth herein this Agreement. Client acknowledges and agrees that Captivate Designs can and will rely on all representations, warranties, covenants and agreements that he/she makes herein.