TERMS AND CONDITIONS
Capitaliz.com Website and SaaS Service
Unless otherwise indicated, these Terms and Conditions of Service (together with the Specific Terms defined below, the “Terms”) apply to (i) all use of and/or access to the capitaliz.com website and/or other websites (collectively, the “Website”) which are owned or operated by Capitaliz Solutions, Inc., a Delaware corporation, and/or Capitaliz Pty. Ltd., an Australian proprietary limited company (collectively, “Capitaliz”), including any portions thereof available only to subscribers, and (ii) all use of the service provided by Capitaliz via a web-based SaaS platform known as “Capitaliz” which allows financial advisory firms (“Customers”) to upload data, receive Business Insight Reports, and access document templates (together with the Website, the “Service”). For purposes of these Terms, “affiliates” shall mean any entity or person, directly or indirectly, owning a controlling interest in, owned by, or under common ownership control with, Capitaliz. Capitalized terms have the meanings defined in Section 11 or otherwise in these Terms.
Capitaliz is committed to protecting Customer privacy and security. For more information, Customers should review the Capitaliz Privacy Policy, which is incorporated into these Terms by reference.
CAPITALIZ DOES NOT AND WILL NOT GRANT YOU ANY RIGHT OR LICENSE TO ACCESS, BROWSE OR USE THE SERVICES WITHOUT YOUR WILLINGNESS AND ABILITY TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS.
IF YOU DO NOT ABIDE BY THE PROVISIONS OF THESE TERMS, EXCEPT AS CAPITALIZ MAY OTHERWISE PROVIDE FROM TIME TO TIME, YOU AGREE THAT CAPITALIZ MAY IMMEDIATELY DEACTIVATE OR DELETE YOUR USER ACCOUNT AND RESTRICT ANY FURTHER ACCESS TO SUCH INFORMATION AND/OR FILES, OR THE SERVICES, WITH OR WITHOUT NOTICE.
In order to access the Service, each Customer will be required to agree to certain Specific Terms (the “Specific Terms”) such as the Client Subscription Term, Product Features, Accreditation Fee, Monthly Subscription Fee, Accreditation Maintenance Fee and Business Insight Report Fee, as applicable. The Specific Terms for each Customer are incorporated into these Terms, and, together, constitute the agreement between Capitaliz and such Customer.
1. ACCEPTANCE OF TERMS AND CONDITIONS
These Terms apply to the Service provided by Capitaliz to the Customer specified above to enable the Customer to create Business Insight Reports, build a 21 Step Implementation Roadmap, enable collaboration and project management, and provide dynamic revaluation (or any combination thereof) for its Clients. The Customer will be bound by these Terms upon its acceptance of the Specific Terms and the acceptance of its application for a Capitaliz Account.
2. CAPITALIZ ACCOUNT AND CLIENT SUBSCRIPTION TERM
2.1. In order to access the Service, the Customer must have an active Capitaliz Account and either have at least one active Client Subscription or pay an Accreditation Maintenance Fee during any period in which an individual advisor has no active Client Subscription. Customer may only hold a Capitaliz Account if it or any of its Personnel holds a Capitaliz Accreditation.
2.2. The Customer’s Capitaliz Account will come into effect on the day it is activated by Capitaliz and will continue to be in effect until terminated in accordance with these Terms.
2.3. A Client Subscription will come into effect on the date on which Capitaliz confirms the Customer’s order for a Business Insight Report under a new Client Subscription and will continue to be in effect for the Client Subscription Term. Customer may only create Client Subscriptions if it holds a Capitaliz Account.
3. LICENSE TO ACCESS AND USE SERVICE
3.1. In consideration for the payment of the Accreditation Fees and any Monthly Subscription Fees, Business Insight Report Fees and/or Accreditation Maintenance Fees, Capitaliz grants to the Customer a non-exclusive, non-transferable, non-sublicensable license to access and use the Service (or elements thereof) for each of its Clients during the applicable Client Subscription Term (each a “Customer License”).
3.2. Capitaliz grants to each Invitee a non-exclusive, non-transferable, non-sublicensable license to access and use the Service during the Client Subscription Term applicable for such Invitee (each an “Invitee License”). Invitees may only access the Client Subscription to which they have been invited by a Customer. An Invitee License will not have the same level of visibility and permissions that the Customer has under its Customer License.
3.3. The maximum number of Invitees per Client Subscription is 6.
3.4. Each Customer and Invitee shall have separate login details.
3.5. Each Customer shall be liable for any and all breaches of an Invitee License by its Invitees.
4. USE OF SERVICE
4.1. Customer shall ensure that:
a) only that Customer’s Personnel who are Accredited may access and use the Service under the Customer License;
b) only Invitees may access and use the Service under Invitee Licenses;
c) it does not grant access to the Service to any person other than an Invitee;
d) the Customer and the Invitees use the Service in accordance with all applicable laws (including privacy laws), rules, regulations and other restrictions, and that they do not use the Service, or allow the Service to be used, in any manner which harms or may harm the name, reputation or goodwill of Capitaliz;
e) the Customer and Invitees use the documents (including document templates) available under a Client Subscription only in connection with the Client the subject of that Client Subscription, and no data is processed under a Client Subscription other than that of the Client the subject of that Client Subscription;
f) neither the Customer nor the Invitees copy, reproduce, reverse engineer, decompile or disassemble, or cause or allow the copying, reproduction, reverse engineering, decompilation or disassembly of, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service, or any information or methodology contained in or connected with the documents, that are available through the Service, including any Business Insight Report or other documents or templates of documents (or part thereof);
g) neither the Customer nor the Invitees modify, translate, or create derivative works based on the Service (except to the extent expressly permitted by Capitaliz or authorized within the Service), use the Service for the benefit of any unauthorized third-party, or remove any proprietary notices or labels;
h) without limiting any of the foregoing provisions, the Customer uses the Service only in the ordinary course of its business; and
i) any person who uploads or otherwise inputs any data into the Service using such Customer’s Capitaliz Account has the authority to do so.
4.2. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like.
4.3. The Customer agrees that it is fully responsible and liable for any acts or omissions of Invitees and other third parties that are given access to the Customer’s Capitaliz Account by the Customer or who use the Customer’s login details.
4.4. The Customer acknowledges and agrees that the content available on the Service and the Service interface may change or be improved from time to time.
4.5. The Customer warrants that:
a) it holds all necessary licenses and registrations to provide professional services to its Clients; and
b) it has current professional indemnity insurance in respect of the services it provides to its Clients, including by using the Service.
4.6. Each of the warranties set out in Section 4.5 is repeated each day throughout the term of the Customer License.
5. ACCURACY OF INFORMATION
5.1. The Customer shall ensure that:
a) all information (including Client Data) uploaded or otherwise input into the Service is, and continues to be, true, accurate and complete; and
b) it or its Invitees will upload or otherwise input into the Service all information that is relevant for purposes of Capitaliz generating each Business Insight Report.
5.2. The Customer acknowledges that:
a) the accuracy of, and the analysis contained in a Business Insight Report is dependent upon the Customer complying with its obligations in Section 5.1 above;
b) without limiting any other provision in these Terms, Capitaliz is not responsible for any incorrect analysis or information contained in a Business Insight Report, or for any loss or damage suffered by the Customer or its Client, arising from the Customer’s failure to comply with Section 5.1 above or otherwise; and
c) acknowledges that each Business Insight Report shall be based solely on the information uploaded or otherwise input into the Service at the time the Client Subscription is created, and that Capitaliz is not obliged to amend a Business Insight Report or issue a subsequent Business Insight Report upon receipt of information after such Business Insight Report has been created.
6. PAYMENT
6.1. In consideration for the Customer License and Invitee Licenses, the Customer shall pay to Capitaliz:
a) a one-off Accreditation Fee per individual advisor on or prior to such advisor’s use of the Service; AND
b) either (i) Monthly Subscription Fees for each Client each month during the applicable Client Subscription Term; or (ii) Accreditation Maintenance Fees and a Business Insight Report Fee for each Business Insight Report.
6.2. Customer shall pay any applicable Accreditation Fees, Business Insight Report Fees and Accreditation Maintenance Fees via Stripe or Capitaliz’s other designated online payment service. In respect of any Client Subscription, Customer shall also enter into a Master Software Financing Agreement with Capitaliz Funding Company pursuant to which Customer shall be charged the Monthly Subscription Fees in advance on the first day of each calendar month during an active Client Subscription Term via Stripe or Capitaliz’s other designated online payment service.
6.3. Any consideration or payment obligation referred to in these Terms is exclusive of taxes and duties unless stated otherwise. If a supply made under or in connection with these Terms is a taxable supply for which the consideration is a payment of money, the consideration for the supply shall be increased by an additional amount equal to such tax.
6.4. The Business Insight Report Fee and Accreditation Maintenance Fees, if applicable, may be amended, and any other amount payable by the Customer to Capitaliz in connection with the Service, other than the Monthly Subscription Fees, may be introduced and/or amended, on 30 days’ prior written notice to the Customer.
6.5. All dollar amounts referred to in these Terms or on Capitaliz’s website are a reference to United States dollars unless otherwise expressly stated.
7. SUSPENSION AND TERMINATION
7.1. In addition to any other rights of Capitaliz under these Terms, Capitaliz may suspend a Capitaliz Account and/or Client Subscription whilst the Customer:
a) owes any monies to Capitaliz that are past due;
b) does not hold, or does not have any Personnel who hold, a Capitaliz Accreditation; or
c) is delinquent on any Monthly Subscription Fees due under any Software Financing Agreement.
7.2. Capitaliz may terminate the Capitaliz Account, any Client Subscription or Customer License and/or any Invitee License on written notice to the Customer in the event that:
a) the Customer (including any of the Customer’s Personnel or Invitees) breaches any term of these Terms;
b) the Customer fails to pay any monies payable to Capitaliz when due;
c) in Capitaliz’s opinion, the Customer (including any of its Personnel or Invitees) acts or omits to act in a manner which is or may be harmful or detrimental to Capitaliz’s reputation;
d) if bankruptcy or insolvency proceedings are instituted by or against the Customer, the Customer is dissolved or liquidated, whether voluntarily or involuntarily, a receiver or trustee is appointed for all or substantially all of the assets of the Customer or the Customer makes an assignment for the benefit of creditors; or
e) the Customer breaches the Accreditation Rules.
7.3. If the Customer has entered a fixed term Client Subscription, the Customer may not terminate that Client Subscription for any reason during the applicable Client Subscription Term.
7.4. Upon termination of a Client Subscription, Capitaliz Account or Customer License, Capitaliz shall use reasonable commercial endeavours to, at Capitaliz’s option, export to the Customer, or permit the Customer to export to itself, all relevant Client Data in the period of 10 days after such termination.
8. CUSTOMER DATA
8.1. As between the parties, the Customer shall own any and all Client Data or other data it uploads or inputs into the Service or otherwise provides to Capitaliz in connection with the Service.
8.2. Capitaliz reserves the right to delete Client Data 90 days after termination of the applicable Client Subscription and Capitaliz is not obligated to store any such Client Data after such time.
8.3. The Customer hereby authorises Capitaliz to store, use, disclose, sell or otherwise deal with Client Data, together with the content of any Business Insight Report, in anonymised form for any purpose including for statistical and analytical purposes or commercial purposes. The Customer hereby warrants that it has the power to give the authority referred to in this Section 8.
8.4. Capitaliz will keep confidential all of the Customer’s Confidential Information and all Client Data that the Customer provides to Capitaliz. Notwithstanding the foregoing, the term “Confidential Information”; does not include information that (a) is or becomes part of the public domain other than as a result of a disclosure by Capitaliz in breach of its obligations under these Terms; (b) was, is or becomes known to Capitaliz, without a breach of a restriction or obligation of confidentiality, prior to disclosure; (c) was, is or becomes known to Capitaliz from a third party that is, to the knowledge of Capitaliz, not bound by a confidentiality agreement with the disclosing party; (d) is developed by Capitaliz independent of any information that is otherwise Confidential Information of the Customer or Clients; or (e) is already in the possession of Capitaliz at the time of disclosure. In the event Capitaliz become compelled by lawful process (such as interrogatories, subpoenas, civil investigative demands, or any law or judicial, administrative or governmental order) to disclose any Confidential Information, Capitaliz shall (if legally permitted and practicable) provide the Customer with reasonably prompt written notice so that the Customer may (at its sole expense) seek a protective order or other appropriate remedy, or both, or waive compliance with the provisions of these Terms. Failing the entry of a protective order or other appropriate remedy or receipt of a waiver hereunder, Capitaliz shall furnish only that portion of the Confidential Information that is, in the judgment of its legal counsel, legally required to furnish and shall exercise its commercially reasonable efforts (at the Customer’s sole cost and expense) to obtain reliable assurance that confidential treatment shall be accorded such Confidential Information. Notwithstanding anything contained herein to the contrary, in the event that Capitaliz is required to, or its counsel believes it is reasonably necessary to, disclose any Confidential Information in connection with any governmental filings, Capitaliz shall be entitled to do so and shall furnish a copy of the disclosure to the Customer as and when made.
9. LIMITATION OF LIABILITY
9.1. THE USE OF THE SERVICE IS AT CUSTOMER’S SOLE RISK. THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED AND EXCLUDED, TO THE FULLEST EXTENT PERMITTED BY LAW. SPECIFICALLY, CAPITALIZ DOES NOT WARRANT THAT: (A) THE USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; (B) THAT THE USE OF THE SERVICE WILL ALLOW CUSTOMER TO OBTAIN ANY PARTICULAR RESULTS WHATSOEVER; (C) THE SERVICE OR ANY INFORMATION THROUGH THE SERVICE ARE OR WILL BE ACCURATE, CURRENT, COMPLETE, RELIABLE, OR OF ANY PARTICULAR VALUE OR QUALITY; (D) THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED; OR (E) THAT THE SERVICE IS FREE OF VIRUSES OR OTHER DISABLING DEVICES OR HARMFUL COMPONENTS. FOR THE AVOIDANCE OF DOUBT, NOTHING HEREIN SHALL ENTITLE CUSTOMER TO ANY REFUND, REBATE OR RETRIBUTION FOR USE OF THE SERVICE THAT CUSTOMER DETERMINES TO BE UNSUCCESSFUL.
9.2. Capitaliz shall not be responsible or liable for any breakdowns or interruptions to the Service, including interruptions caused by factors beyond Capitaliz’s control, such as power failures; defective equipment, internet connections or telecoms connections; the regulatory acts of any governmental or quasi-governmental authority; catastrophic weather conditions or other extraordinary elements of nature or acts of God; acts of war (declared or undeclared); acts of terrorism; cyber warfare; insurrection, riots, civil disorders or rebellion; quarantines; or embargoes.
9.3. To the extent permitted by law, except as otherwise expressly provided in these Terms, all warranties, terms and provisions that arise in statute or that are or may be implied are expressly excluded and shall not apply.
9.4. In no event will Capitaliz be liable to Customer, any Client, or any third party, for any losses or damages alleged under any legal theory arising out of or in connection with: (a) the use of, or reliance on, the Services in a way not contemplated by these Terms; or (b) the negligence, illegal act or omission, or wilful misconduct of Customer or any Client.
9.5. Capitaliz is not liable for third-party solutions that are available via and/or integrated with the Service. Consequently, Capitaliz is not liable for the correctness, completeness, quality, and reliability of the information or for the results which are achieved by means of such third-party solutions. Moreover, Capitaliz is not liable for the availability, security or functionality of such third party solutions, including for any damage and/or loss caused by such third-party solutions.
9.6. To the extent permitted by law, Capitaliz’s liability under any claim, action or proceeding that the Customer has or may have against Capitaliz in connection with these Terms or the Service (including any analysis or findings contained in a Business Insight Report), whether that claim, action or proceeding is based in contract, tort (including negligence), statute or otherwise, including law relating to negligence, or any term, condition or warranty which has not been excluded, is limited to a refund of the Accreditation Maintenance Fees or Monthly Subscription Fees paid by the Customer to Capitaliz within the 12 month period immediately preceding the event, act or omission giving rise to such liability.
9.7. Under no circumstances will Capitaliz be liable to Customer, any Client or any third party for any indirect, consequential, incidental, punitive, special, or similar damages or costs (including, but not limited to, lost profits or data, loss of goodwill, loss of or damage to property, loss of use, business interruption, and claims of third parties) arising out of or in connection with these Terms or the use of the Service, or the transmission of information to or from the Service over the Internet, even if Capitaliz was advised, knew, or should have known of the possibility of such damages or costs.
9.8. The Customer shall indemnify Capitaliz against all loss, damage and liability suffered by Capitaliz (including legal fees on an indemnity basis) arising from or in connection with:
a) the Customer’s or any Client’s breach of these Terms;
b) any claim made by a third party against Capitaliz in relation to breach of privacy or Intellectual Property Rights in connection with the Capitaliz Account, a Client Subscription or any Client Data; or
c) the negligence, illegal act or omission, or wilful misconduct of Customer or any Client or
Invitee.
9.9. The Customer must, during the term of a Capitaliz Account, maintain adequate commercial general liability insurance and professional indemnity insurance in respect of the services it provides to its Clients, including by using the Service. The Customer must provide Capitaliz with evidence of such insurance within 3 business days of request.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. The Customer acknowledges and agrees that all Intellectual Property Rights in or in connection with the Service, and all improvements, enhancements or modifications thereto, or in the trademarks or service marks of Capitaliz, are rights of Capitaliz and such rights shall not vest in or transfer to the Customer or any Client or Invitee, whether under these Terms, by use of the Service or otherwise.
10.2. The Customer shall not, and shall ensure that its Personnel and Invitees do not:
a) copy, download, record, reproduce, distribute, modify, publish, archive, license, create
derivative works from or similar works to, or offer for sale, the Service, any Business Insight Report or the content or information contained in or obtained from or through the Service other than for the intended purpose of the Service; or
b) use the Service in a fraudulent manner.
10.3. The Customer shall notify Capitaliz of any actual or suspected infringement of Capitaliz’s
Intellectual Property Rights and any unauthorised use of the Customer’s Capitaliz Account of which the Customer becomes aware.
10.4. Capitaliz acknowledges and agrees that all Intellectual Property Rights in or in connection with the trademarks or service marks of the Customer, are rights of the Customer and such rights shall not vest in or transfer to Capitaliz, whether under these Terms or otherwise.
10.5. The Customer grants to Capitaliz and any of its subcontractors a non-exclusive worldwide irrevocable license to use any and all material uploaded by or on behalf of the Customer or any Client to the Service, including all Client Data, for purposes of providing a Business Insight Report to the Customer.
10.6. The Customer represents and warrants that no uploaded material or Client Data will infringe upon or violate the rights of any third party, including, but not limited to, Intellectual Property Rights and will not contain any material that is obscene, offensive, inappropriate or in breach of any applicable law.
11. DEFINITIONS
In these Terms:
“Accreditation Fee” means the one-off fee for a Client’s Capitaliz Accreditation of an individual advisor, as set out in the Specific Terms.
“Accreditation Rules” means the rules or terms and conditions applicable to obtain and maintain a Capitaliz Accreditation, as set by Capitaliz in its sole discretion from time to time.
“Accredited” means, in respect of a person, a person who holds a Capitaliz Accreditation.
“Accreditation Maintenance Fee” means a monthly fee payable during any period where no Client Subscription is active, in the amount specified in the Specific Terms.
“Business Insight Report” means a report generated for the Customer by Capitaliz using Client Data.
“Business Insight Report Fee” means, in respect of a Client Subscription, a one-off fee for a Business Insight Report generated in respect of a Client, to the extent set out in the Specific Terms (subject to Section 6.3).
“Capitaliz Account” means the overarching account enabling the Customer to use the Service and to create Client Subscriptions.
“Capitaliz Accreditation” means the accreditation known as the Capitaliz accreditation given to persons by Capitaliz upon those persons satisfying the Accreditation Rules.
“Client” means a client of the Customer in respect of whom the Customer has created a Client Subscription.
“Client Data” means data of or in connection with a Client which has been uploaded or input into the Service.
“Client Subscription” means a subscription by the Customer to use the Service in respect of a
particular Client for a fixed Client Subscription Term.
“Client Subscription Term” means, in respect of a Client Subscription, the duration of such Client Subscription as specified in the Specific Terms.
“Intellectual Property Rights” means all existing and future intellectual property rights at any time recognised by law, including copyrights, registered and unregistered trademarks and service marks, trade names, slogans, logos, emblems, designs, visual representations, patents, trade-secrets and know-how, Confidential Information and patentable inventions.
“Invitee” means any person whom the Customer has, via the Service, nominated (and who continues to be nominated) as an invitee to access the Service under an Invitee License, such persons being limited to Personnel and professional advisors of the Customer and its Clients.
“Jurisdiction” means, Delaware, U.S.A., if the Capitaliz party invoicing Customer is Capitaliz Solutions, Inc., and New South Wales, Australia, if the Capitaliz party invoicing Customer is Capitaliz Pty. Ltd.
“Monthly Subscription Fee” means, in respect of a Client Subscription, the monthly fee for the Customer’s subscription to use the Service in respect of such Client, to the extent set out in the Specific Terms (subject to Section 6.3).
“Personnel” means, in respect of a party, the party’s directors, officers, contractors and employees.
“Service” means the service provided by Capitaliz via a web-based SaaS platform known as “Capitaliz” which allows Customers to upload Clients’ data, receive Business Insight Reports, and access document templates.
“Service” includes the underlying methodology of, and the document templates contained in, the Service.
“Specific Terms” means the Specific Terms set forth above.
12. GENERAL
12.1. Relationship: Nothing in these Terms shall be deemed to create a partnership or joint venture or contract of employment of any kind between the parties nor shall it be deemed to grant any authority not expressly set out in these Terms or create any agency between the parties.
12.2. Entire Agreement: Each party confirms that these Terms, including the Specific Terms, set out the entire agreement and understanding between the parties and that it supersedes all previous agreements, arrangements, and understandings between them relating to the subject matter of these Terms. Each party confirms that it has not relied upon any statement, representation, or understanding that is not expressly stated in these Terms.
12.3. Amendments: If the Customer has entered a fixed term agreement, the Specific Terms and these General Terms may not be amended except in writing signed by both parties. If the Customer has not entered a fixed term agreement, the Specific Terms may not be amended except in writing signed by both parties, however Capitaliz may amend these General Terms from time to time on 30 days’ written notice (the current version of the General Terms in force from time to time are available on Capitaliz’s website).
12.4. Waiver: No waiver shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
12.5. Rights of Third Parties: Nothing in these Terms shall create or confer any rights or other benefits in favour of any person other than as expressly stated in these Terms.
12.6. Further Assurances: At any time or from time to time after the date hereof, the parties agree to cooperate with each other, and at the request of any other party, to execute and deliver any further instruments or documents and to take all such further action as the other party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the parties hereunder.
12.7. Assignment: The Customer may not assign its rights under these Terms, the Capitaliz Account or any Client Subscription, Customer License or Invitee License without the prior written consent of Capitaliz. Capitaliz may transfer and assign any of its rights and obligations without consent.
12.8. Subcontractors: The Customer acknowledges that Capitaliz is entitled to use subcontractors in connection with the Service, including for the operation of the Service, the preparation of Business Insight Reports and the storage of Client Data.
12.9. Severability: If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
12.10. Notices: All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
12.11. Jurisdiction: These Terms shall be governed by and construed in accordance with the laws of the Jurisdiction, without giving effect to any principles of conflicts of law. Any action at law or in equity arising out of or relating to Customer’s use of the Service or to these Terms shall be filed only in the courts located in Jurisdiction and the Customer hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.