terms of service.
Effective Date: April 15, 2020.
These Terms of Service (the “Terms”) govern use of the Recurate website at www.recurate.com, and associated software applications, software platform, and digital application (collectively, the “Software”) and constitute a legal agreement between the user (“Client” or “you”) and Recurate. By registering with the Software and using any services accessible from Software, you acknowledge that you have read, understood, and agree to these Terms. If you do not agree to these Terms, do not register with Recurate and do not use the Software.
Subject to these Terms, Provider grants to Client a non-transferable, non-exclusive right, without right to sublicense, to access and use Provider’s Software made available to the Client by Provider, as updated or revised by Provider from time to time. All rights not expressly granted herein are retained by Provider.
Provider does not guarantee, represent or warrant that access to the Software will be uninterrupted or error-free, and Provider does not guarantee that Client will be able to access or use all or any of the platform’s features at all times. Provider may suspend the Software, in whole or in part, at any time.
Fees, if any, for access to and use of the Software are due and payable as set forth below. Fees and other charges do not include federal, local, foreign, sales, transaction, use or value added taxes (“Taxes”) now or hereafter levied, all of which shall be Client’s responsibility. If Provider is required to pay Taxes on Client’s behalf, Provider shall invoice Client for such Taxes, and Client shall reimburse Provider for such amounts.
Provider will invoice or automatically charge Client for Fees, if any. Unless otherwise specified in a Client-specific contract, Provider will invoice Client monthly or automatically charge Client, with invoice required being no later than thirty (30) days after issuance by Provider. Late payment charges may be assessed on overdue amounts at the lesser of one and one-half percent (1.5%) per month or the highest rate allowed by applicable law.
Unless otherwise agreed upon in a Client-specific contract, Provider will collect 10% of all gross sales, excluding taxes and shipping costs, transacted through the Software or associated services as Transaction Fees. Provider will invoice or automatically charge Client for Transaction Fees on a monthly basis.
Provider will pay for initial pre-paid shipping label for the seller to send the product to the buyer, and the Client will collect Shipping Fees from the buyer during each transaction. Provider will invoice or automatically charge Client for Shipping Fees on a monthly basis for reimbursement.
Except as otherwise specifically permitted in these Terms, neither the Client nor any of Client’s employees, agents or customers may: (a) modify or create any derivative works of the Software, including translation or localization; (b) access or copy the Software except as provided in these Terms or elsewhere authorized in writing by Provider; (c) sublicense or permit use of the Software by any persons not associated with the Client and authorized by Client as users of the Software; (d) reverse engineer, decompile, or disassemble or otherwise attempt to derive the source code for the Software; (e) redistribute, encumber, publicly display, sell, rent, lease, sublicense, use the Software in a timesharing or service bureau arrangement, or otherwise transfer rights to the Software; or (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software.
Notwithstanding the foregoing, Client shall be permitted to use reports, documents or other materials generated by Client through the Software, if any, outside of the Software for Provider’s commercially reasonable business purposes.
Client understands and agrees that Provider reserves the right to edit, modify or remove content being hosted by Provider, for reasons including but not limited to violations of the above standards or in any Acceptable Use policy published by Provider. Neither Client nor its users are permitted to distribute, upload, transmit, store, make available or otherwise publish or process through the Software any information or materials provided or submitted by Client or any of its users in the course of utilizing the Software (“Client Content” ) that: (a) is unlawful or encourages another to engage in anything unlawful; (b) contains a virus or any other similar programs or software which may damage the operation of Provider’s or another’s system; (c) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party; or, (d) is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying.
Client and its users may not use the Software in any way that (a) violates the rights of any other person or company or that infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any other person or company; or (b) would be in violation of applicable law or cause damage or harm to Provider or any third-parties.
Provider may terminate Client’s account or restrict access to the Software where Provider reasonably believes such action is necessary to protect the Software, prevent undue liability for Provider, or to avoid potential violation of applicable laws.
All Client Content is and shall remain the property of Client or the applicable third party; however, in order to use the functionality of the Software, Client may provide Client Content to Provider through the Software or otherwise, and Provider requires a license to such Client Content in order for the Software to perform its tasks. Client therefore grants to Provider a nonexclusive, worldwide, royalty-free license to use, reproduce, modify, transmit, display, prepare derivative works from and otherwise utilize the Client Content in and through the Software as instructed by Client and to facilitate Client’s instructions.
Provider retains all right, title and interest in and to the Software and any and all updates, upgrades or new modules now or hereafter included or made available to Client through the Software. Title to and ownership of any modifications, suggestions, feedback or customizations of the Software shall be held exclusively by Provider, and to the extent necessary, is hereby assigned by Client to Provider. Client agrees to perform such acts, and execute and deliver such instruments and documents, and do all other things as may be reasonably necessary to evidence or perfect the rights of Provider set forth in this section.
5. ACCOUNT INFORMATION AND COMMUNICATIONS.
Client agrees (a) to provide true, accurate, current and complete information about the Client, including proper email and billing addresses, (b) to maintain and promptly update the information to keep it true, accurate, current and complete, and (c) to accept communications from Provider at its email address. Client agrees that Provider may provide notices, statements and other communications to Client solely through email or other electronic transmission.
6. SECURITY MEASURES.
Provider will utilize commercially reasonable, industry-standard data security practices to safeguard the integrity and security of Client Content and other Client information used with or stored by the Software.
Client will, at its own expense, take all security measures necessary to (a) protect the Software and the Software from unauthorized access, copying or use, and (b) prevent third-party access to Client’ login IDs and passwords to the Software. Any password issued to Client is subject to cancellation or suspension by Provider at any time. Client will immediately inform Provider if Client becomes aware of any possible or actual unauthorized use or misuse of the Software.
It is anticipated that the Client and Provider may exchange proprietary information necessary to carry out obligations set forth hereunder, which may be collected during the use of the Software. In order for Client and Provider (collectively the “Parties”) to access, use and track the proprietary information, the Parties agree as follows:
Definition. “Confidential Information” as used in this Agreement means any and all information disclosed by a Party (each a “Discloser”) to the other Party (each a “Recipient” ) relating to the Software or each other’s business. Notwithstanding the foregoing, as between Provider and Client, the Software is deemed to be Provider’s Confidential Information. Confidential Information shall not include information that: (a) was generally known or available at the time it was disclosed or has subsequently become generally known or available through no fault of Recipient; (b) was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Recipient by Discloser; (c) is independently developed by Recipient without use of Discloser’s Confidential Information as documented by competent records; or (d) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence.
Use Limitations; Nondisclosure Obligation; Duty of Care. Each Party agrees as a Recipient: (a) not to use Confidential Information of the other Party for any purpose except in furtherance of its rights or obligations hereunder; (b) that it shall disclose the other Party’s Confidential Information only to its employees, advisors, contractors or consultants who need to know such information in order to carry out obligations hereunder, and certifies that such individuals have previously agreed, either as a condition to employment or in order to obtain the Confidential Information of the other Party, to be bound by terms and conditions at least as restrictive as those of this Section, provided that any act or omission by such a third party that would be a violation of these Terms if committed by a Party hereto shall be deemed a breach by the Party that provided the information to such third party; and (c) to treat all Confidential Information of the other Party with the same degree of care as it accords its own confidential information of a similar nature, but in no case less than with a reasonable degree of care. A breach of these obligations may result in irreparable and continuing damage to the disclosing Party for which there may be no adequate remedy at law, and, in the event thereof, the disclosing Party shall be entitled injunctive or other equitable remedies as may be appropriate.
Required Disclosures. A Party may disclose Confidential Information of the other Party as and to the extent required by a valid order of a court or other governmental body, as otherwise required by law, or as necessary to establish the rights of either Party under these Terms. For disclosures required by law, a Party shall first, where permitted by law, notify the other Party of the disclosure and grant such other Party a reasonable opportunity to contest or otherwise limit such disclosure.
Data Collection. Client agrees that Provider may, but is not required to, monitor Client’s and its users’ use of the Software, and collect and use data and related information regarding such use which may be gathered periodically to ensure compliance with these Terms, to facilitate the provision of updates, product support, product enhancement and other services (if any), and for delivering a better experience for Client and for Provider’s general business internal purposes. Subject to the foregoing use exceptions, other than in aggregate, non-identifiable form, all such data shall be considered Client’s Confidential Information. Information included in an aggregate, non-identifiable data set (“Anonymous Data”) shall not be considered Client’s Confidential Information, and Provider may use such Anonymous Data for Provider’s business purposes.
Client will defend, indemnify and hold Provider (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses and expenses (including reasonable attorneys’ fees) arising from any third party claim, suit, action or proceeding (a) arising out of or in connection with a claim, suit, action, or proceeding by a third party, (b) alleging that Client Content or other data, information or instructions supplied by Client infringes or caused Provider to infringe on the intellectual property rights or other rights of a third party or has caused harm to a third party, (c) relating to Client or its users’ use of the Software in violation of the law, or (d) relating to an actual or threatened breach of these Terms by Client.
9. DISCLAIMER; LIMITATION OF LIABILITY.
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SOFTWARE AND ALL COMPONENTS THEREOF ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND PROVIDER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION THOSE RELATING TO LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM UNAUTHORIZED ACCESS (INCLUDING THIRD PARTY HACKERS OR DENIAL OF SERVICE ATTACKS). EXCEPT FOR LIABILITY RELATED TO INDEMNIFICATION OBLIGATIONS, NEITHER PARTY’S AGGREGATE LIABILITY SHALL EXCEED THE GREATER OF FEES PAID BY CLIENT TO PROVIDER OR $1,000 IN THE AGGREGATE.
10. DISPUTE RESOLUTION.
Any dispute or claim that may arise out or relate in any way to these Terms or Client’s use of the Software shall be resolved exclusively through final and binding arbitration (rather than in court) under the then-current commercial rules of the American Arbitration Association in Arlington County, Virginia. Any judgment on the award rendered by the arbitrator is final and may be enforced in a court of competent jurisdiction. Nothing in these Terms prevents either Party from seeking injunctive or equitable relief in court. The prevailing Party in any arbitration or litigation is entitled to recover its reasonable attorneys’ fees and costs from the other Party. Notwithstanding the foregoing, Provider may enforce its rights and obligations under these Terms with respect to fees owed by Client or to secure injunctive relief in the event of a threat of irreparable injury in any court of competent jurisdiction.
CLIENT MAY BRING CLAIMS AGAINST PROVIDER ONLY ON AN INDIVIDUAL BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE CLIENT’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, CLASS OR REPRESENTATIVE PROCEEDING.
These Terms constitutes the Parties’ entire understanding and agreement with respect to the subject matter hereof, and unless otherwise agreed upon in a Client-specific contract, supersede all prior and contemporaneous agreements, representations and understandings between the Parties. If any provision of these Terms is found to be invalid or unenforceable, such provision shall be severed from the Terms and the remainder of the Terms shall be interpreted so as best to reasonably affect the intent of Provider and Client. These Terms shall be governed by the laws of the Commonwealth of Virginia, United States, without application of its conflicts of laws principles. Client may not assign its rights under these Terms, and any such assignment shall be null and void.
If you have questions, concerns or feedback regarding this Terms of Service, you can contact us at support@Recurate.com.