THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND USE OF THE CAPTIVATE NEXA SERVICES (THE “SERVICES”). NEXA IS AN ONLINE (SAAS) EVENT PLATFORM FOR EVENT OWNERS, PRIMARILY IN THE B2B SEGMENT.

BY EXECUTING AN ONLINE SIGNUP OR AN ORDER FORM TO PURCHASE THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. 

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. 

IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

If you are a competitor – enjoy the solution and try to keep up! However, as competitor you may not access the Services for benchmarking or competitive purposes.

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Table of Contents

Contents

NEXA Subscription Agreement

1. DEFINITIONS

2. USE OF THE SERVICES

3. NON-CAPTIVATE SERVICES

4. FEES AND PAYMENT FOR SERVICES

5. PROPRIETARY RIGHTS AND DATA PRIVACY

6. CONFIDENTIALITY

7. WARRANTIES AND DISCLAIMERS

8. MUTUAL INDEMNIFICATION

9. LIMITATION OF LIABILITY

10. TERM AND TERMINATION

11. NOTICES, GOVERNING LAW AND JURISDICTION

12. GENERAL PROVISIONS

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1. DEFINITIONS

“We,” “Us” or “Our” means Captivate ApS, VAT DK43767879 – a Danish Company located at “Dampfærgevej 4, 2100 København, Denmark.

“You” or “Your” means the company or other legal entity on whose behalf you are executing this Agreement, and Affiliates of that company or entity. If You are an agency purchasing Services on behalf of Your clients, the terms “You” or “Your” shall include such clients, and You shall be responsible for such clients’ compliance, obligations as well as for any breach of those obligations by such clients, and for payment for purchases of the Services on behalf of such clients - under this Agreement.

“Order Form” means the documents for placing orders for the Services, or the online Signup Form that are entered into between You and Captivate. Order Forms shall be deemed incorporated herein by reference.

“Services” means the Event Platform and services herein offered by Captivate under the name(s), “NEXA”. All Services can be accesse as-is via the SaaS UI - by Online Signup with password-protected customer login or access via the Application Programming Interface (API). The “Services” exclude Non-Captivate Services (as defined in Section 3).

“Affiliate” means any entity with directly or indirectly ownership or control of more than 50% of the voting interests of the subject entity.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Sensitive Data” means data that is Personal Identifiable information regulated by local or international laws (GDPR, CCPA etc) ie.; Social Security number, passport number, driver’s license number or similar identifier; information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, or data revealing sex life or sexual orientation; a minor’s Personal Data; (v) precise geolocation data; or health or medical information.

“Users” means people who You have provided access to, and given rights to use the Services, and who have been supplied user identifications and passwords by You (or by us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents.

“Your Data” means any electronic data, content or information that is submitted to NEXA by You or on Your behalf.

2. USE OF THE SERVICES

2.1. Our Protection of Your Data.

We shall maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data. 

We shall not: 

1. modify Your Data; 
2. disclose Your Data except as compelled by law in accordance with Section 6.3 (Compelled Disclosure) or as expressly permitted in writing by You; or 
3. access Your Data except to provide the Services and support for the Service.

2.2. Your Responsibilities.

You shall:

1. be responsible for Users’ compliance with this Agreement;
2. be responsible for the accuracy, quality and legal base of Your Data;
3. use reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use;
4. use the Services only in accordance with this Agreement and applicable laws and government regulations; and
5. be solely responsible for compliance with all state and federal laws and regulations, and all applicable rules and regulations which apply to Your transactions and events with Your customers.

You shall not:

1. make the Services available to anyone other than Users, and your end-user for events, registration purposes, streaming etc.;
2. use the Services to store or transmit infringing, defamatory, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights as well as for child-abuse, pornographic, discriminatory, criminal or likewise content;
3. use the Services to store or transmit Malicious Code;
4. interfere with or disrupt the integrity or performance of the Services;
5. generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisements, or other solicitations (“spam”);      
6. Perform unauthorized Audits and Inspections, including, but not limited to, security scans and/or pen tests performed by unapproved entities.  To request an audit or inspection, you must notify Captivate at least three (3) weeks in advance via written request to compliance@captivateint.com.  
7. attempt to gain unauthorized access to the Services or their related systems or networks;
8. submit to or use the Services to collect, store or process any Sensitive Data, or similar information under other comparable laws or regulations, without end-users’ explicit consent; or
9. reverse engineer the Services.

2.2. Fair Usage Policy.

As part of our commitment to providing a high-quality, fast and reliable Service, We have Fair Use Policy (also referred to as the FUP) for some elements in our Software as a Service (SaaS) Products – hereafter “Service”, specifically:

1. Email Services is limited to 20,000 sent emails via the Service per month
2. Livestream is limited to HD and 1,000 viewing hours per month
3. On Demand Video is limited to HD and 1,000 viewing hours per month

For use of additional volume, you can request, and purchase added volume via Captivate.

You agree that you will not use the same login credentials to access the services across multiple vat / corporate identity numbers (vat). One subscription cannot be used for multiple vat´s. If we determine that you are using the same platform login credentials to access the services for multiple companies or as service for multiple entities, we have the right, at our sole discretion, to terminate this agreement immediately upon notice to you, with no refund of the amount paid prior to the date of termination.

3. NON-CAPTIVATE SERVICES

3.1. Non-Captivate Products and Services.

The Services may include third-party solutions, including but not limited to applications and implementation, customization etc. (“Non-Captivate Services”) – ie.; SMS, email  service, Hosting infrastructure and service etc.. 

These Non-Captivate Services can be used or purchased through the Services, pursuant to which You will pay for the addition to Your profile on the Service. Furthermore, We may suggest using Non-Captivate Solutions for interaction with the Service – ie. for streaming. 

We will only be responsible for monitoring, and first-level support between you and any Non-Captivate Services provider that are included or paid for via the Services.  We are not responsible for any disclosure, modification or deletion of Your Data resulting from such Non-Captivate Service or its provider. If You choose to use any Non-Captivate Service in conjunction with the Services, You grant us permission to allow the Non-Captivate Service and its provider to access Your data as required for the interoperation of that Non-Captivate Service with the Services. 

Use of such Non-Captivate Services will terminate with the termination of this Agreement. 

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3.2. Integration with Non-Captivate Applications.

The Services may contain features designed to interoperate with non-Captivate applications. To use such features, You may be required to obtain access to such non-Captivate applications. If the provider of any such non-Captivate application ceases to make the non-Captivate application available for interoperation with the corresponding Captivate features on reasonable terms, We will investigate other solutions for the application, or may even cease providing such Captivate features, and You will not be entitled to any refund, credit, or other compensation.

4. FEES AND PAYMENT FOR SERVICES

4.1. Fees. 

The Service is a based on a subscription – either monthly or yearly upfront – which You select in the Order Form. Any subscription will be automatically renewed, unless terminated according to terms and conditions in section 10.

Except as, and solely to the extent otherwise specified herein or in an Order Form, 

1. fees are based on services purchased, 
2. payment obligations are non-cancellable, and fees paid are non-refundable, and 
3. quantities purchased cannot be decreased during the relevant subscription term stated on the Order. Subscription fees are billed either per month or annually depending on your order, beginning on the subscription start date and continuously hereafter.
4. During a subscription, additional one-off Service purchase can be applied and paid for (SMS, Storage etc)

4.2. Invoicing and Payment.

By ordering the Service, You will provide Us with;

1. valid and updated credit card information, or 
2. PO by invoice to be paid, with maximum net 8 days payment terms.

Payments by cash or check are not accepted. 

Credit card payments are subject to a maximum threshold that is determined by our payment processor or by Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial subscription term, additional orders and any renewal subscription term(s) as set forth in Section 10 (Term of Purchased Subscriptions). 

For Service payments via invoice, which can only be applied by Us - the payment must be for an agreed period.

You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.

4.3. Overdue Charges.

If any charges are not received from You by the due date, then at Our discretion, such charges may accrue interest at the rate of 1.5% of the outstanding balance per month, from the date such payment was due until the date paid.

4.4. Suspension of Service.

If any amount owing by You under this or any other agreement for the Services is overdue, We may, without limiting Our other rights and remedies, suspend the Services until such amounts are paid in full and no later than 7 days after due date. 

4.5. Payment Disputes.

We shall not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service) if You are disputing the applicable charges reasonably and in good faith and cooperating diligently to resolve the dispute.

4.6. Taxes.

Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). 

If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You. 

For all non-Danish customers, all charges and payments are subject to “Reverse VAT charge”. All non-Danish customers with payment without applied Tax – here, it is Your responsibility for paying all Taxes associated with Your purchases hereunder, unless We are forced to collect on Your behalf by law. 

For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

5. PROPRIETARY RIGHTS AND DATA PRIVACY

5.1. Reservation of Rights in the Services.

Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

5.2. Your Data.

As between You and Us, You shall own all Your Data uploaded or otherwise placed into the Service. During the term of this Agreement, You grant to Us the right to use Your Data to provide feedback to You related to Your use of the Service.  You grant to Us the right to anonymize Your Data such that the data cannot relate to or identify You, Your clients, or any individual, company or organization therefrom or collected through the Service (“Anonymized Data”).

Captivate shall own Anonymized Data and the parties agree that You have no right, title or interest to such Anonymized Data.

5.3. Suggestions.

You hereby grant to Us a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided to Us by You, including Users, related to the operation of the Services.

5.4. Data Privacy.

You represent and warrant that Your use of the Services will comply with all applicable laws and regulations. You are responsible for determining whether the Services are suitable for You in light of your obligations under applicable laws, such as the Health Insurance Portability and Accountability Act and the Health Information Technology for Economic and Clinical Health Act as amended (“HIPAA”), the Gramm-Leach-Bliley Act of 1999 as amended (“GLBA”), or data protection laws, such as the General Data Protection Regulation (GDPR) or the California Consumer Privacy Act (CCPA) etc. 

We will not be liable if the Services, as configured and deployed by You, do not meet those requirements. To the extend required by applicable laws, You acknowledge and agree that You are responsible for ensuring that any necessary notices and consents to the processing via the Services are obtained.

To the extend We process Your Personal Information (as defined in the Data Processing Addendum attached hereto) protected by Data Protection Laws (as defined in the Data Processing Addendum) as a sub-processor on your behalf, You and Captivate shall be subject to and shall comply with Nexa’s Data Processing Addendum, which is incorporated into and forms an integral part of this Agreement. 

The Data Processing Addendum sets out Your obligations with respect to data protection when processing Personal Information in connection with the Services.

6. CONFIDENTIALITY

6.1. Definition of Confidential Information.

As used herein, “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), 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 and the circumstances of disclosure. 

Your Confidential Information shall include Your Data; 

Our Confidential Information shall include, without limitation, the Services; 

and Confidential Information of each party shall include, without limitation, the terms and conditions of this Agreement and the contents of all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. 

However, Confidential Information shall not include any information that 

1. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; 
2. was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; 
3. is received from a third party without breach of any obligation owed to the Disclosing Party; or 
4. was independently developed by the Receiving Party.

6.2. Protection of Confidential Information.

The Receiving Party shall 

1. use the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but in no event less than reasonable care), 
2. not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and 
3. except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed agreements with the Receiving Party containing protections no less stringent than those herein. 

Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

6.3. Compelled Disclosure.

One of the Parties may disclose Confidential Information if it is compelled by law to do so.

7. WARRANTIES AND DISCLAIMERS

7.1. Our Warranties.

We warrant that: 

1. We have validly entered into this Agreement and have the legal power to do so; 
2. subject to Section 3.2 (Integration with Non-Captivate Applications), the functionality of the Services will not be materially decreased during a subscription term; and 

For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 10.

7.2. Your Warranties.

You warrant that You have validly entered into this Agreement and have the legal power to do so.

7.3. Disclaimer.

Except as expressly provided herein, captivate makes no warranties of any kind, whether express, implied, statutory or otherwise, and captivate specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.

7.4. Beta Services.

As part of the Service Development – We might make Beta services available to Our customers (“Beta Services”). Any Beta Services will be clearly designated as beta. Beta Services are provided for evaluation purposes before final release, and may contain bugs or errors, and may be subject to additional terms. 

BETA SERVICES ARE NOT CONSIDERED A PART OF “SERVICES” AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. 

We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available.

All Beta Services that are continuously applied to the Services as final feature – shall hereafter be considered part of these terms.

8. MUTUAL INDEMNIFICATION

8.1. Indemnification by Us.

We shall assist you to defend and indemnify You against any claim, demand, lawsuit, or proceeding made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”). We shall only help with matters related to the Service, where it is proven to have the origin from the Service and provided that You 

1. promptly give Us written notice of the Claim Against You; 
2. give Us undisputable proof of the Claim is related to the origin of the Service, and not a breach from You in regards to the use of the Service; and 

In the event We receive information regarding a Claim Against You, or if We reasonably believe the Services may infringe or misappropriate or violate any applicable laws, We may in Our discretion; 

1. modify the Services so that they no longer infringe or misappropriate third party rights or fail to comply with any applicable law, without breaching Our warranties under “Our Warranties” above, 
2. terminate Your subscriptions for such Services upon 30 days’ written notice, or 
3. require that You immediately, upon receipt of notice from Us, discontinue all use of any Services or Your Data that may be related to an actual or potential Claim Against You or violation of law,  

To the extend not prohibited by law, You may delete or permit Us to delete any of Your Data, in each case within five days of receipt of notice from Us. We shall be authorized to provide a copy of such to the third-party claimant. 

We shall have no obligation to indemnify You to the extend any Claim Against You arises from, or in connection with, any Services, or Your material breach of the terms of this Agreement.

8.2. Indemnification by You.

You shall defend and indemnify Us against any claim, demand, lawsuit or proceeding made or brought against Us by a third party arising out of, or related to Your breach of Your obligations under this Agreement or or warranty made by You, alleging that Your Data, or Your use of the Services, infringes or misappropriates the intellectual property or privacy rights of a third party or otherwise violates applicable law (a “Claim Against Us”) provided that We 

1. promptly give You written notice of the Claim Against Us; 
2. give You control of the defence and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and 
3. provide to You all reasonable assistance, at Your expense. 

In the event We receive information regarding an actual or potential Claim Against Us, We may, in Our discretion, require You to immediately discontinue all use of any Services or Your Data that may be related to an actual or potential Claim Against Us and, to the extend not prohibited by law, delete from Your systems any such Services or delete or permit Us to delete from the Services, any of Your Data, in each case within five days of receipt of notice from Us. 

8.3. Exclusive Remedy.

This Section 8 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

9. LIMITATION OF LIABILITY

We shall not be liable for any profit loss, lost data, costs of procurement of substitute products, or any indirect, consequential, exemplary, incidental, special or punitive damages arising from or relating to this Agreement or Your use of, or inability to use, the Services, regardless of the form of action, even if We have been advised of the possibility of such damages. 

A potential maximum liability shall be limited to fees paid or payable to Us for the Services in the active subscription period as maximum (ie. Monthly is month, yearly is year) immediately preceding the claim. 

The existence of more than one claim will not enlarge this limit.

10. TERM AND TERMINATION

10.1. Term of Agreement.

The term of this Agreement commences as of the date an Order Form has been signed by You, and continues until all subscriptions, including any renewal terms, have expired or been terminated.

For Service payments via Credit card - the termination period is up until “agreed period end-date” - otherwise You are bound to, a renewed period of the same as previous and will be charged.

For Service payments via invoice - the termination period is the last day of the month before “agreed period end-date” (ie. If end-date is December 31st, termination must be made in writing before November 30th) - otherwise You are bound to, a renewed period of the same as previous and will be charged.

Upgrading a subscription can be done continuously with immediate effect.

Downgrading a subscription can be done from the end-date of a current subscription.

ONE SUBSCRIPTION CANNOT BE USED FOR MULTIPLE VAT´S. 

10.2. Term of Purchased Subscriptions.

Subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription period specified therein. 

Unless You cancel Your Subscription, Your subscription will continue automatically, and all payments will apply for a new period with the same length as previous.

10.3. Termination for Cause.

A party may terminate this Agreement only for cause, which means: 

1. failure by the other party to cure a breach of this Agreement within 30 days after receiving written notice of such breach from the non-breaching party, or 
2. if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  

10.4. Refund or Payment upon Termination.

Upon any termination for cause by You in accordance with Section 10, We shall not refund any paid or prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. 

Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

10.5. Deletion of Your Data.

Upon termination or expiration of this Agreement, at Your direction, Your Data will be deleted from the Services, except that: 

1. Captivate may retain a copy of Your Data, subject to the confidentiality requirements of this Agreement and applicable laws, as required for regulatory, audit or legal purposes, and may not be used for any other purpose, and 
2. Captivate may retain Your Data for backup or archival purposes in accordance with Captivates ordinary back-up or document retention policies (for up to one year) so long as such archival or backup data is maintained in accordance with the requirements of this Agreement and applicable law. 

After the expiration of the end-date of the Agreement, You will no longer have access to Your data. You will however have 7 days to re-create Your paid account with a new payment – otherwise Your data will be lost and deleted.

10.6. Surviving Provisions.

4 (Fees and Payment for Services), 5 (Proprietary Rights and Data Privacy), 6 (Confidentiality), 7 (Warranties and Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10.4 (Refund or Payment upon Termination), 10.5 (Deletion of Your Data), 11 (Notices, Governing Law and Jurisdiction), and 12 (General Provisions) shall survive any termination or expiration of this Agreement.

11. NOTICES, GOVERNING LAW AND JURISDICTION

11.1. Manner of Giving Notice.

Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be made via the Service, or to support@nexahub.io and shall be deemed to have been given upon: 

1. immediately if given via the Service, and a confirmation has been received from the Service
2. the second business day after sending by email (provided email shall require confirmation for notices of termination or an indemnifiable claim). 

Billing-related notices to You will be addressed to the registered Platform Owner(s) designated by You. All other notices to You shall be sent to the address set forth on the Order Form or via the Services.  

11.2. Governing Law.  

This Agreement will be interpreted under and governed by the laws of Denmark.

12. GENERAL PROVISIONS

12.1. Export Compliance.

The Services We make available, and derivatives thereof may be subject to export laws and regulations and other jurisdictions. We obtain the right to minimize or revoke any access to the Service from embargoed countries or countries that – from Our perspective - should be unable to access the Service or are in violation of any law or regulation.

12.2. Relationship of the Parties.

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

12.3. No Third-Party Beneficiaries.

There are no third-party beneficiaries to this Agreement.

12.4. Waiver.

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

12.5. Severability.

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to fully accomplish the objectives of the original provision permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.6. Assignment.

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). 

Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, in connection with a merger, acquisition or sale of all, or substantially all its assets.

12.7. Marketing.

You grant to Us the right to use Your logos, symbols, or brand names on our website and in marketing materials as referred to as “trusted by”.

12.8. Entire Agreement.

This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. 

No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. 

However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum, or Order Form shall prevail.