Scope. All transactions involving purchases and licenses from Capsim® shall be governed by (i) these Standard Terms and Conditions, (ii) any written contract between Capsim® and the purchaser or the licensee (“Purchaser”) that is executed by both of them, (iii) terms and conditions included in any written quote issued and executed by Capsim® and accepted by the Purchaser, (iv) if the Purchaser purchases or licenses from a Capsim® website, any Terms and Conditions referenced by an “I agree” or similar button selected by the Purchaser in connection with such purchases or licenses, and (v) the Terms and Conditions on the back of the Capsim® invoice, if any, that relates to such purchases or licenses. The combination of the provisions, terms and conditions described in (i) through (v) above will be referred to as “Applicable Terms and Conditions.”
Precedence. In the event of an inconsistency among the contract provisions and the terms and conditions listed in (i) through (v) above, the following rules shall apply:
Execution. In order for a contract or communication to be “executed” by, and binding upon, Capsim® or any of its affiliates, the execution must be in the form of handwritten signatures in blue ink by either (a) Capsim’s President or (b) two authorized Capsim representatives, one of whom must be the Director of Accounting entity being bound one of whom must be either the President or the Chief Executive Officer of such entity, on a paper copy of such contract or communication. No other action or communication, verbal, written or otherwise (including email) will be considered an execution by Capsim® or an affiliate and will not be binding on any of them.
No Third Party Beneficiary. The Applicable Terms and Conditions shall be for the benefit of Capsim® and the Purchaser and not for the benefit of any other person. Prior courses of dealing, trade usage and verbal agreements not reduced to a writing and executed by Capsim®, to the extent they differ from, modify, add to or detract from the Applicable Terms and Conditions shall not be binding on Capsim®. Notwithstanding any contrary provision in the Purchaser’s purchase order or any other communication from the Purchaser, no action by Capsim®, such as delivery or provision of goods or services or the commencement of work, will be deemed an acceptance by Capsim® of any purchase order or other communication from the Purchaser with terms different than or additional to those contained in the Applicable Terms and Conditions.
Prices and payment. All prices are subject to change without notice, except that if prices are in a written quote from Capsim® which is less than 60 days old, the quote shall be honored as stated therein. Other than purchases made by credit card or paid in advance, (i) all orders are subject to credit approval before delivery by Capsim®, and (ii) payment shall be due on the date of receipt of invoice. Overdue accounts shall bear interest at a rate equal to the lesser of one percent per month compounded monthly (annual rate of 12.68%) or the highest rate permitted by applicable law. All amounts are stated, and payments are to be made, in United States currency. If a payment is past due, Capsim® may terminate all access, services and licenses relating to anything purchased or licensed by the Purchaser, with or without notice, and the Purchaser will pay all of Capsim®’s costs of collection, including, without limitation, all court or arbitration costs and attorneys’ fees.
Taxes. All taxes, levies and duties of any nature whatsoever applicable to the purchase of Capsim® goods or services and the licensing of intellectual property from Capsim® shall be paid by the Purchaser unless the Purchaser provides Capsim® with an exemption certificate acceptable to the relevant taxing authority. Unless otherwise specified, the prices shown or quoted by Capsim® do not include any taxes, levies and duties.
Refunds. Once a good or service is activated by an end user, no refunds will be given. If a good or service has not been activated and the activation code has not been seen or accessed by any person (including the Purchaser), the Purchaser shall be entitled to request a refund, but only if Capsim® has issued an RMA and the request has been made within six months of purchase.
Warranty and limitation of liability. Capsim® warrants each good and service to be generally free from defects in material and workmanship under normal use and service and warrants it to generally operate in accordance with its programmed instructions. No good or service is warranted to be error free. The warranty period shall be the lesser of (i) the standard length of the course taken by the end user plus six months and (ii) six months from the date of the relevant invoice (or the date of delivery if there is no invoice). This warranty extends only to the original end user and shall not extend to anyone else. Capsim®’s obligation under this warranty is limited to making the course available to the original end user within the applicable warranty period.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHERS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF ANY KIND, INCLUDING MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE, OR NONINFRINGEMENT. CAPSIM® MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTIES AS TO USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS.
CAPSIM® MAKES NO WARRANTY OR REPRESENTATION THAT (A) THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE; (C) THE QUALITY OF ANY GOODS OR SERVICES, CONTENT, DATA, INFORMATION OR MATERIAL PURCHASED OR LICENSED WILL MEET THE PURCHASER’S OR THE END USER’S EXPECTATIONS; OR (D) ANY ERRORS IN THE WEBSITE WILL BE CORRECTED.
TO THE FULL EXTENT PERMITTED BY LAW, CAPSIM® SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REPUTATION, REVENUE, PROFITS, PRIZES, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE), EVEN IF CAPSIM® HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION DAMAGES DUE TO: (A) THE USE OF OR THE INABILITY TO USE THE WEBSITE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED, LICENSED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE WEBSITE; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; OR (D) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE. NOR SHALL CAPSIM®’S LIABILITY ON ANY CLAIM FOR DAMAGES ARISING OUT OF OR CONNECTED WITH THE APPLICABLE STANDARD TERMS AND CONDITIONS OR THE MANUFACTURE, SALE, DELIVERY, LICENSEE OR USE OF GOODS, SERVICES, OR INTELLECTUAL PROPERTY OF CAPSIM® EXCEED THE PRICE PAID BY THE PURCHASER.
TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
Force Majeure. Neither Capsim® nor the Purchaser shall be liable for failures in performance (other than payment or refund obligations), including delay or non-shipment, resulting from acts or events beyond its reasonable control. Such acts or events shall include, but shall not be limited to, acts of God, civil or military authority, civil disturbance, fire, hurricanes, earthquakes, strikes, lockouts or slowdowns, factory or labor conditions, errors in manufacture, inability to obtain necessary labor, materials or manufacturing facilities, delayed issuance of export control licenses, or other “force majeure” events beyond the reasonable control of the non-performing party.
Assignment. The Purchaser may neither assign nor transfer its rights to anything it may have purchased or licensed from Capsim®, by operation of law or otherwise, without the prior written consent of Capsim®. Capsim®’s affiliated companies may participate in Capsim®’s performance hereunder.
Severability. If any of the terms or provisions of the Applicable Terms and Conditions shall be declared in violation of law, the remaining terms and provisions shall remain in full force and effect.
Choice of law; venue. These Standard Terms and Conditions are governed by the internal laws of the State of Illinois, without regard to its conflict of laws rules, and by applicable U.S. federal laws. All disputes or legal proceedings relating to these Standard Terms and Conditions or the use of goods, services or intellectual property of Capsim® purchased or licensed hereunder shall be brought and heard exclusively in the state or federal courts located in Cook County, Illinois, USA, and the Purchaser hereby irrevocably consents and submits to personal jurisdiction in such courts for all such disputes or legal proceedings.
Waiver. No waiver by either party of any breach of any of the Applicable Standard Terms and Conditions by the other party shall be deemed to constitute a waiver of any other breach nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy hereunder operate as a waiver thereof. A waiver given by a party hereunder shall be binding upon such party only if in writing and signed by such party.
Export control. The Purchaser agrees to comply with all applicable laws, rules and regulations and obtain all permits, licenses and authorizations or certificates that may be required in connection with its purchase or licensing of goods, services or intellectual property of Capsim®. This includes any laws, regulations, orders or other restrictions on exports from the U.S. which may be imposed from time to time by the U.S. government. The Purchaser shall not export or re-export, directly or indirectly, goods, services, data or information from Capsim® pertaining thereto to any country for which either such government or any agency thereof requires an export license or governmental approval at the time of export or re-export without first obtaining such license or approval.
2. YOUR OBLIGATIONS AND CONDUCT
2.1 In consideration of Your use of the Website, You agree to: (a) provide accurate, current, and complete information about You as may be prompted by a registration form on the Website (the “Registration Data”); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information You provide to Capsim®, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to Your information and Registration Data. You have sole responsibility for adequate protection and backup of data and/or equipment used in connection with the Website.
2.3 You agree that You will not use the Website to: (a) transmit spam, bulk or unsolicited communications; (b) pretend to be Capsim® or someone else, or spoof Capsim®’s or someone else’s identity; (c) forge headers or otherwise manipulate identifiers (including URLs) in order to disguise the origin of any Content transmitted to or from the Website; (d) misrepresent Your affiliation with any person or entity; (e) disrupt the normal flow of dialogue or otherwise act in a manner that negatively affects other users’ ability to use the Website; (f) engage in activities that would violate any fiduciary relationship, any applicable local, state, national or international law, or any regulations having the force of law, including but not limited to attempting to compromise the security of any networked account or site, operating an illegal lottery or gambling operation, stalking, or making threats of harm; or (g) collect or store personal data about other users unless specifically and explicitly authorized by such users and then only in accordance with applicable law, including FERPA.
3. CONTENT SUBMITTED TO CAPSIM®
3.2 Capsim® does not routinely monitor Content, but Capsim® and its designees reserve the right to monitor, restrict access to, edit or remove any Content that is available via the Website.
4. CAPSIM® E-MAIL
Capsim® will attempt to deliver all of the e-mail that is addressed to Your e-mail address on the Website. However, the nature of e-mail is such that Capsim® cannot guarantee delivery of such e-mail. You may not try to access Your Capsim® e-mail account using any method other than method(s) the Capsim® provides. Your use of the Capsim® e-mail service must be in accordance with any policies imposed by Capsim® and by applicable law, including applicable export and re-export control laws and regulations. In connection with Your use of the Capsim® e-mail service, Capsim® may send You service announcements, administrative messages, and other information. You may opt out of some of those communications.
In order to use Your Capsim® e-mail service, You will need an account that is protected by Your password. You will not share Your password with anyone, and if You learn that Your password has been compromised, You will immediately notify Capsim®. If Capsim® receives one or more notices of alleged copyright infringement relating to Your use of Your Capsim® e-mail account, Capsim® will follow the process set out in the U.S. Digital Millennium Copyright Act and may, in its sole discretion, terminate Your account at any time. Capsim® may change or modify terms of Your use of the Capsim® e-mail service at any time. It may add or remove features at any time, may suspend or stop all or part of e-mail services at any time, and add or create new usage limits at any time.
5. OFFICIAL RULES GOVERNING CAPSIM® PROFESSOR SCHOLARSHIP CHALLENGES
5.1 Any educator who, at the time of registration, is 18 years of age or older and is a professor, assistant professor, associate professor or equivalent, teaching at a university, college or other educational institution located in North America (an “Eligible Educator”) is eligible to register to participate in a Challenge, provided that employees of Capsim® and its owners, parent companies, affiliates, subsidiaries, franchisees, representatives, agents, advertising, promotion and production agencies and their immediate family members (i.e., spouse, parent, child, and siblings, including step-parents, step-children, and step-siblings) and persons living in the same household of each are not eligible to participate in any Challenge.
5.2 Eligible Educators are allowed to register only one time per Challenge. If it is discovered that an Eligible Educator has registered or attempted to register more than once for a single Challenge using multiple e-mail addresses, accounts or multiple identities, all of that Eligible Educator’s entries for that Challenge will be declared null and void.
5.3 Capsim® will provide Eligible Educators whose registrations have been accepted (“Participating Educators”) with online classes that teach Capsim®’s simulations. Participating Educators will then be pitted against one another in two separate sets of competitions (the Capstone Business Simulation Competition and the Comp-XM Basix Competition) to generate the highest score within each of the two Challenges.
5.5 One winner will be declared for each Comp-XM Basix Competition Challenge and one winner will be declared for each Capstone Business Simulation Competition Challenge. Each winner shall be selected based upon generating the highest score in that Challenge. Capsim® shall make a donation to the university, college or other educational institution that employs each winner, in honor of that winner, in an amount announced prior to the Challenge. Any such foregoing prize shall be non-assignable and non-transferable, no substitution shall be permitted, and no alternative prizes shall be available. Any winner accepts any and all responsibility, if any, for all federal, state and local taxes and fees in connection with winning a Challenge.
5.7 Capsim® is not responsible and disclaims any and all liability for the following: (i) late, lost, delayed, damaged, deleted, incomplete, illegible, unintelligible, garbled, incorrect or misdirected registrations or transmissions, whether caused by computer error or otherwise; (ii) telephone, electronic, hardware or software program, network, Internet, or computer malfunctions, failures, or difficulties of any kind; (iii) data corruption, theft, destruction, unauthorized access to or alteration of registration or other Challenge materials; (iv) any condition caused by events beyond the control of Capsim® that may cause a Challenge to be disrupted or corrupted; or (v) any injuries, losses, or damages of any kind arising in connection with or as a result of a prize, or acceptance, possession, or use of a prize, or from participation in a Challenge.
5.9 Capsim® reserves the right to suspend, cancel or modify a Challenge at any time in its sole and absolute discretion and for any reason or no reason.
6. NOTICES; MODIFICATION AND TERMINATION OF SERVICES; AMENDMENT OF TERMS
7. CONTENT PROVIDED VIA LINKS
You may find links to other Internet sites or resources on the Website. You acknowledge and agree that Capsim® is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Capsim® will not be responsible or liable, directly or indirectly, for any actual or alleged damage or loss caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
8. INTELLECTUAL PROPERTY RIGHTS
8.2 “Capsim® Trademarks” means all names, marks, brands, logos, designs, trade dress, slogans and other designations Capsim® uses in connection with its products and services. You may not remove or alter any Capsim® Trademarks, or co-brand your own products or material with Capsim® Trademarks, without Capsim®’s prior written consent. You acknowledge Capsim®’s rights in Capsim® Trademarks and agree that any use of Capsim® Trademarks by You shall inure to Capsim®’s sole benefit. You agree not to incorporate any Capsim® Trademarks into Your trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations, for use on or in connection with computer or Internet-related products, services or technologies.
9. DISCLAIMER OF WARRANTIES
9.1 YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK UNLESS OTHERWISE EXPLICITLY STATED. THE WEBSITE, INCLUDING THE SOFTWARE, INFORMATION, SERVICES AND CONTENT (AS DEFINED IN SECTION 1.2) IS PROVIDED ON AN “AS IS” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. CAPSIM® DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. CAPSIM® MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE WEBSITE.
9.2 YOU AGREE THAT CAPSIM® MAKES NO WARRANTY OR REPRESENTATION THAT: (A) THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE; (C) THE QUALITY OF ANY PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED FROM THE WEBSITE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; OR (D) ANY ERRORS IN THE WEBSITE WILL BE CORRECTED.
9.3 YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM OBTAINING ANY CONTENT FROM THE WEBSITE, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.
10. LIMITATION OF LIABILITY
10.1 TO THE FULL EXTENT PERMITTED BY LAW, CAPSIM® IS NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY OR OTHER SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REPUTATION, REVENUE, PROFITS, PRIZES, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, EVEN IF CAPSIM® HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION DAMAGES DUE TO: (A) THE USE OF OR THE INABILITY TO USE THE WEBSITE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED, LICENSED, OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE WEBSITE; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; OR (D) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE.
10.2 TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
11. CHOICE OF LAW; VENUE
“Financial Information” means Personal Information of a financial nature, such as your credit card number.
“Other Business Parties” means parties other than you that contract with Capsim either to provide products and services to Capsim in connection with products or services that Capsim provides to you or that engage Capsim to assist in its provision of products or services to you (e.g., your university or your employer). Other Business Parties may include your fellow students or employees.
“Personal Information” means information about you that Capsim collects from you that may be used, alone or in combination with other information, to identify you as a specific individual.
“Unrelated Parties” means persons or entities other than you, Capsim, or Other Business Parties.
Capsim collects information from you whenever you visit or use the website, some of which you provide voluntarily and some of which is collected automatically. In addition, Capsim may receive information about you from Other Business Parties. The information that you provide to Capsim includes your responses, decisions, and other actions as you participate in and complete simulations.
Capsim’s Use of Your Personal Information
Capsim does not sell, rent or lease your Personal Information to others. Capsim does not share your Personal Information with anyone other than Other Business Parties.
Capsim may collect, use, and disclose Personal Information for the following purposes:
Your Financial Information will be used to provide requested products and services, to analyze operational and business results, to analyze risk, and to conclude a transaction between you and either Capsim or an Other Business Party. It will not be sold, rented, or otherwise transferred to anyone for any other purpose. Capsim uses the services of a third-party service provider to process credit card payments. Therefore, Capsim itself will not have access to you credit card information. In addition, the third party service provider has agreed that it only uses your [personally identifiable] credit card information to process your payments.
Student Education Records
If you are using Capsim products or services in your capacity as a student of an Other Business Party that is subject to the U.S. federal Family Educational Rights and Privacy Act (FERPA) (“Covered Educational Institution”), to the extent that your Personal Information is an “education record” under FERPA, it will be subject to FERPA. If you want to assert your rights under FERPA, you should contact your Covered Educational Institution
Capsim operates its business in the United States of America, and you acknowledge and agree that Capsim’s collection, use, storage, processing, transmission and transfer of your Personal Information will governed by U.S. law and not the law of any other jurisdiction.
If you do not wish to receive marketing email communications from Capsim, you may notify Capsim at the place indicated on the email.
If you do not wish to receive marketing telephone calls or mailings from Capsim, you may opt out by sending an email to email@example.com. Opting-out will only remove you from Capsim’s list and not from anyone else’s.
Capsim takes commercially reasonable steps to secure your Personal Information to protect against its loss, misuse, and alteration. Unfortunately, no data transmission over the internet can be guaranteed to be completely secure. As a result, Capsim cannot guarantee you against the loss, misuse, or alteration of your Personal Information, and you provide information to Capsim at your own risk.
Internet Technologies Used
Cookies, web beacons, and other relevant internet technologies are used on the website. They reside in your computer and browser and can be removed. If you desire to remove such technologies you may do so, but this may render the website unusable by you.
Capsim’s website may contain links to other websites. Some of them may collect your Personal Information and may apply their own policies on how your Personal Information is used. Please read all applicable policies of all websites you visit. Capsim is not responsible for the privacy practices of anyone else’s website(s).
If you have any questions, please contact Capsim’s Director of Accounting and Administration at firstname.lastname@example.org
Last revised: March 28, 2014