Five 9 / RL Joint Customer Terms of Service "TOS" and Acceptable Use Policy "AUP"
Five9 Exhibit: Recursive Labs Customer Terms of Service
Last Modified: May 1, 2018
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
This is a contract between you (the Customer) and us (Recursive Labs). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our products and services to you unless you agree to them. By using the Subscription Service or receiving the Support Services, you are agreeing to these terms.
We periodically update these terms. If you have an active Recursive Labs subscription, we will let you know when we do via an email or in-app notification.
Finally, we know legal terms can sometimes be difficult to navigate, so we wanted to give you a roadmap of the Agreement:
A. DEFINITIONS. This is where we provide the detail on what the key defined terms in the Agreement mean. You can think
of this kind of like a contractual dictionary.
B. GENERAL COMMERCIAL TERMS. Here’s where you can find the basics about how our Subscription Service and Support Services are provided. For example, you can find information on access and acceptable use. These terms apply to all of our products and service offerings.
C. SUBSCRIPTION TERMS. Customers of ours subscribe to use our software, and there are some fundamental terms that
apply to each subscription. There are some differences between the different types of subscriptions, and here’s where you can find that detail.
D. PRODUCT DISCLOSURES. We offer several different products and there are some important things to know before you
use them. We’ve collected these important things to know and you can find them here.
E. GENERAL LEGAL TERMS. As we mention above, this is a contract, and contracts are filled with legal terms. In this section, we’ve collected the many of the remaining legal terms that make up our Customer Terms of Service.
F. JURISDICTION SPECIFIC TERMS. With customers across the globe, this final section is where we address most of the
differences in these terms that vary based on customer location.
Agreement
A. DEFINITIONS
"Agreement" means these Customer Terms of Service and all materials referred or linked to in here.
“Billable Users” means those types of Users (defined below) for which we charge you fees as set forth on our Pricing Page.
"Billing Period" means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“Confidential Information” means all information provided by you or us ("Discloser") to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of the Order. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
"Consulting Services" means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
"Customer Data" means all information that you create or collect via the Subscription Service.
“Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
"Recursive Labs Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services.
"Order" or "Order Form" means the Recursive Labs-approved form or online subscription process by which you agree to
subscribe to the Subscription Service and purchase Consulting Services. Most Orders are completed through our online payment process. The Order may be referred to as a "Statement of Work" if you are purchasing only Consulting Services.
“Pricing Page” means https://recursivelabs.com/plans-pricing/.
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"Sensitive Information" means (a) credit or debit card numbers; personal financial account information; Social Security
numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Sensitive Personal Data’.
"Site Visit" or "Visit" means interaction with your website by a single visitor in a single session.
"Subscription Fee" means the amount you pay for the Subscription Service.
"Subscription Service" means all of our web-based tools and platforms that you have subscribed to by an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via
https://recurseivelabs.com or another designated URL, and any ancillary products and services that we provide to you.
"Subscription Term" means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which
interoperate with or are used in connection with the Subscription Service.
"Third-Party Sites" means third-party websites linked to from within the Subscription Service, including Communications
Services.
"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
"Recursive Labs", “RL”, "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
"You", "your" or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
B. GENERAL COMMERCIAL TERMS
1. Services. RL shall provide access to the cloud-based customer collaboration platform as a SaaS model and provide
consulting, implementation, hosting and maintenance services related to the SaaS Service (“Services). RL will provide shared Customer hardware, software and network applications necessary to provide the Services, with data storage and usage bandwidth adequate in RL’s judgment to accommodate Customer’s reasonably anticipated data and bandwidth needs in connection with the associated purchase. Customer shall be responsible for providing all computer, device and other equipment and any facilities that may be necessary for its use of the Services under this Agreement including any software, hardware or network applications or capabilities necessary for Customer to utilize the Services on their own website.
RL shall provide customer service contact for Customer in the event Customer needs customer support. This contact shall be identified in writing prior to the Effective Date. In the event of an emergency during non-Business Hours (Mon-Fri 9am-5pm Central), RL shall maintain an after-hours contact number for emergency support.
RL hereby reserves the right to interrupt the Services to conduct any necessary maintenance each Sunday during the hours of 11:00pm Central and 1:00am Central (“Scheduled Downtime”). Customer understands that this may result in a brief interruption of the Services.
2. Limited License. Subject to the terms of this Agreement and in exchange for the consideration detailed herein, the
sufficiency of which is herein acknowledged, RL hereby grants to Customer and Customer accepts from RL, a non-exclusive, non-transferable, non-assignable, limited license and right to access the Services, to access and manage any session transaction (i.e., Start, Stop, mouse position, etc.), and only to the extent detailed in Section 12 of this Agreement, statistics and usage data “Customer Data” during the Term of this Agreement. No other license is granted under this Agreement.
3. Access to the Services shall be limited to Customer employees and contractors working on Customer’s behalf who require access to perform their designated responsibilities as an employee or contractor of Customer on a need to know/need to use basis. Customer will use commercially reasonable efforts, as well as taking any steps reasonably requested by RL, to protect RL’s interest in the Services, including the execution and delivery of any documents or instruments related thereto. RL is not obligated to make the Services available as a locally installed application or to make any changes or modifications to the Services suggested or offered by Customer, and further reserves the right to discontinue work on or to revise the Services so that it may provide different features or functionality, features in different combinations, and/or different environment configurations.
4. Term and Termination. RL may terminate this Agreement immediately for violations of Sections 2 or 3 of the
Commercial Terms or Section or Section 2 or 4 of the General Legal Terms. If, and only if Agreement or any Statement of Work is terminated by Customer for cause, RL shall refund to Customer a pro-rated portion of the fees paid by Customer for the Services not yet completed by RL as of the date of termination.
Upon the expiration or termination of this Agreement, RL shall cease providing Services. Customer will immediately cease using the Services. The parties will promptly destroy all data, reports, written or electronic materials (including any backups or archival copies) provided by or on behalf of, or otherwise related to, the other (including any Confidential Information, proprietary information or any related content, including any copies thereof), except for Deliverables, unless such data, reports, written or electronic materials must be retained pursuant to applicable law or record retention requirements.
Customer shall be responsible to pay RL for all undisputed amounts for Services rendered, up to the expiration or termination date upon receipt of a final invoice detailing such fees and charges, if any. In the event RL ceases doing business in the ordinary course, terminates its business operations related to the Services, or is deemed to be insolvent or declares bankruptcy at any point during the Initial Term, this Agreement shall be terminated.
Outside of the terms and conditions set forth in this Section 6, either party may terminate this Agreement if the other party
materially breaches this Agreement. Prior to termination, the party alleging a breach by the other party must give notice to
the breaching party within 10 days of the breach and must allow the breaching party 45 days in which to cure the breach.
1. Intellectual Property As between the parties. RL, owns all of the right, title and interest in and to the Services, or has
valid licenses to any third party component or technology imbedded in the Services, including the right to sublicense any third party component to Customer, including the know-how, business methods and methodologies, works of authorship, skills and programming or SaaS service proprietary code, including but not limited to patents or patentable ideas, copyright, designs, processes, procedures, formulas, trade secrets and ideas or documentation and RL materials developed prior to this Agreement or during any engagement under this Agreement related to the Services, excluding any Customer Confidential Information (as defined below) (collectively referred to as “RL Intellectual Property”). RL shall own any corrections, modifications, programs, enhancements, suggestions, updates, upgrades, information and work Services conceived, created or developed by any party under this Agreement related to the Services or other RL Intellectual Property. Customer acknowledges that RL has expended a significant amount of time and energy in the creation of the valuable RL Intellectual Property and shall take no actions that may detrimentally affect such RL Intellectual Property. Customer shall not allow any third party other than Customer’s contractors working on its behalf to view the Services Admin Portal or implementation Script or activator Code without RL’s prior written authorization. Except as expressly provided herein, Customer acquires no right, title or interest therein or thereto to any RL Intellectual Property. Customer acknowledges that as between the parties, RL shall own all copyrights and other intellectual property (whether preexisting or newly developed) in and to the Services, including without limitation, any deliverables (“Deliverables”), excluding any Customer Data or Customer Confidential Information. RL grants to Customer a non-exclusive right to use the Deliverables for its own internal business purposes as long as this Agreement remains in effect.
Customer shall not sell, transfer, use, reproduce, edit or amend the Deliverables other than as expressly provided in this
Agreement.
7. Party Warranties. Each party hereby represents and warrants to the other that: (i) such party is duly organized and
validly existing under the laws of the state of its organization, and has full power and authority to enter into this Agreement and to carry out the provisions hereof; (ii) such party is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder; (iii) this Agreement is a legal and valid obligation binding upon the party and is enforceable in accordance with its terms; and (iv) such party shall ensure the compliance of each of its third party supplier(s) with all obligations and responsibilities set forth herein or in any Statement of Work.
8. Data Integrity CUSTOMER UNDERSTANDS AND AGREES THAT, by its very nature, a website-based service cannot be
absolutely protected against intentional or malicious intrusion attempts. Furthermore, RL DOES NOT control third party or
CUSTOMER devices, systems and computers, or the Internet over which CUSTOMER may choose to send confidential
information and cannot, therefore, absolutely prevent such interceptions of compromises to SUCH information while in transit to and from RL. Therefore, RL makes NO absolute guarantee as to security, integrity or confidentiality of any information transmitted to RL. RL cannot and does not guarantee the absolute security of electronic communications or transmissions since any transmission made over the Internet by any organization or any individual runs the risk of interception. RL will at all times in connection with this Agreement: (i) maintain and enforce an information security program including administrative, physical and technical security policies and procedures with respect to its processing of Customer Data and Customer Confidential Information that meet or exceed no less than commercially reasonable industry practices and standards; (ii) provide technical and organizational safeguards adequately designed to protect against accidental, unlawful or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, commingling or processing of such information and ensure a level of security appropriate to the risks presented by the processing of such information and the nature of such information, consistent with not less than commercially reasonable industry practice and standards; (iii) take commercially reasonable measures to secure the Services platform against "hackers" and others who may seek, without authorization, to disrupt, damage, modify, access or otherwise use the Services platform or the information found therein; (iv) take commercially reasonable measures to logically separate Customer Confidential Information from that of other customers; and (v) RL willutilize TLS to encrypt data in transit using modern cipher suite, in accordance with current best practice.
9. Limited Warranty. RL warrants that the Services will perform in accordance with the Services software documentation
and specifications and that the documentation is complete and accurate. RL warrants that it will perform the services under this Agreement in a professional manner, in accordance with applicable professional standards. RL does not warrant results or achievements of Services. Customer agrees that where participation by its own staff is necessary in order to assist RL in the provision of Services such staff shall possess the appropriate skills, experience and authority for the tasks assigned to them, and shall be available at such times as agreed by the parties. EXCEPT AS SET FORTH IN THIS AGREEMENT, RL MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES INCLUDING WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR USE, ACCURACY, CURRENTNESS, SUITABILITY, INTEGRATION, NONINFRINGEMENT AND OF THIRD PARTY RIGHTS. FURTHER, RL DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY THAT MAY ARISE OUT OF ANY COURSE OF DEALING OR COURSE OF PERFORMANCE.
10. Access to Data During the Term. Information such as Customer Data shall be stored on a shared Customer Services
database and shall be the sole property of Customer. As such, RL has the unlimited, unrestricted, worldwide, perpetual, royaltyfree ability to receive and use all de-identified activity and reference data associated with the Services and Customer’s use of the Services solely for internal product use and improvement purposes, and Customer Data shall not be redistributed or packaged, bundled or sold in any way.
In the unlikely event of a data breach, RL shall notify Customer within 24 hours of learning of said breach event and investigate the extent of such loss or disclosure at RL’s own expense. Additionally, RL shall ensure the breach is resolved in a commercially reasonable time. If a breach notification is required by law, RL will, if requested by Customer, assist Customer with notifying affected individuals at RL’s expense.
11. Force Majeure. Neither party will be liable for any delay in performance hereunder if such delay is due to causes beyond the reasonable control of such party. Such causes will include, without limitation, fires, floods, strikes or other labor disputes,
war, criminal disturbances, power failure, an outage at a third-party cloud hosting provider utilized by RL to provide the
Services that could not be reasonably prevented, acts of God and restrictions imposed by any governmental agency. In the event such delay or nonperformance extends beyond thirty (30) days, the other party may, at its option, cancel any portion of this Agreement and/or extend any date upon which any performance is due, and neither party will assess any damages against the delaying party in such event.
12. Service Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for
planned down-time for maintenance
GENERAL LEGAL TERMS
1. Customer Data
a. Aggregate Data. We may monitor use of the Subscription Service by all of our customers and use the data gathered in
an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such
information does not incorporate any Customer Data and/or identify you.
b. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect
Customer Data. You consent to the processing of Customer Data in the United States.
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2. Recursive Labs’s Proprietary Rights. This is an Agreement for access to and use of the Subscription Service, and you
are not granted a license to any software by this Agreement. The Subscription Service and Statement of Work are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Recursive Labs Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks include, but aren’t limited to, our company and product names, and you may not use any of these without our prior written permission.
We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
3. Customer’s Proprietary Rights. As between the parties, you own and retain all rights to the Customer Materials and
Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant
permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the
Subscription Service and Consulting Services to you and as permitted by this Agreement. If you are using the Subscription
Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient
and necessary rights and permissions to do so.
4. Confidentiality. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree
of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
5. Publicity. You grant us the right to add your name and company logo to our customer list and website.
6. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit,
action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
7. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES
ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, RECURSIVE LABS CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, RECURSIVE LABS CONTENT AND CONSULTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES; PROVIDED THAT, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR
OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL
PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
d. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
e. Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION
OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
8. Miscellaneous
a. Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service. If we update
or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at
https://info.recursivelabs.com/terms-of-service and we will let you know via email or in-app notification. The updated
Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically. If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of
any right or remedy on any future occasion.
b. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility,
or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party;
government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
c. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless
of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
d. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
e. Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the
Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.
f. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable
law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
g. Notices. Notice will be sent to the contact address set forth herein and will be deemed delivered as of the date of
actual receipt.
To Recursive Labs, Inc., 2464 Taylor Road, Suite 152 St. Louis, Mo 63040 Attention: General Counsel.
To you: your address as provided in our Recursive Labs Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
h. Entire Agreement. This Agreement (including each Order), along with our Privacy Policy and AUP, is the entire
agreement between us for the Subscription Service and Consulting Services and supersedes all other proposals and
agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
i. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger,
reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written
consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger,
reorganization, sale of all or substantially all of our assets, change of control or operation of law.
j. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any
third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
k. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
l. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this
Agreement and that it is binding upon such party and enforceable in accordance with its terms.
m. Survival. The following sections shall survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees and
Payments’, 'Prohibited and Unauthorized Use', ‘No Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Retrieval of Customer Data’, ‘Crowdsourced Data’, ‘Alpha/Beta Services’, ‘Recursive Labs’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, 'Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.
n. Precedence. In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order shall
control, but only as to that Order.
F. JURISDICTION SPECIFIC TERMS
1. Contracting Entity and Applicable Law. Your physical address determines which Recursive Labs entity you are
contracting with for the Subscription and Consulting Services. For this Agreement, “located in” means your shipping or physical address. If you are located in North America or South America, then you are contracting with Recursive Labs, Inc. and this Agreement is governed by the laws of the State of Delaware without reference to conflicts of law principles. For contracts with Recursive Labs, Inc., both parties consent to the exclusive jurisdiction and venue of the courts in St. Louis, Missouri for all disputes arising out of or relating to the use of the Subscription Service or the Consulting Services.
Recursive Labs Acceptable Use Policy
Last Modified: May 1, 2018
This Recursive Labs Acceptable Use Policy ("AUP") applies to the use of any product, service or website provided by us
(Recursive Labs), whether we provide it directly or use another party to provide it to you (each, a "Recursive Labs Service").
This AUP is designed to ensure compliance with the laws and regulations that apply to the Recursive Labs Service. This AUP also protects the interests of all of our clients and their customers, as well as our goodwill and reputation. These terms are so important that we cannot provide the Recursive Labs Service unless you agree to them. By using the Recursive Labs Service, you are agreeing to these terms. If you are using any Recursive Labs Service, this AUP applies to you. Every client of ours agrees to abide by this AUP and is responsible for any violations. You are not allowed to assist or engage others in a way that would violate this AUP. We will enforce and ensure compliance with this AUP by using methods we consider to be appropriate, such as complaint and email failure monitoring.
We periodically update these terms and we will let you know when we do through the Notification app in the Recursive Labs portal used to access your Recursive Labs subscription (if you have one), or by posting a revised copy on our website. You agree to review the AUP on a regular basis and always remain in compliance.
1. Reporting Suspected Violations. We encourage anyone who has come in contact with the Recursive Labs Service to report suspected violations of this AUP to us by forwarding a copy of the received email with FULL headers to abuse@Recursive Labs.com.
We have a policy to investigate all of these reports and to respond in the way we consider appropriate.
If you know of or suspect a violation of this AUP, you will promptly notify us in writing of the known or suspected violation of this AUP.
2. Telephone and Video Chat Services
You must comply with all laws relating to telephone marketing, including without limitation those specifically referenced in the ‘Proper Usage of Recursive Labs Service’ section below. You must comply with all laws related to the recording of phone calls or video chat sessions and ensure all proper consent to record is obtained prior to making any such recording. If you use the Recursive Labs Service to place telephone calls, you must also comply with all applicable industry standards, including those applicable guidelines published by the CTIA and the Mobile Marketing Association. You are prohibited from using or permitting access to use the Recursive Labs Service to make emergency calls or to provide or seek emergency services.
3. No Disruption
You agree not to use the Recursive Labs Service in a way that impacts the normal operation, privacy, integrity or security of another's property. Another’s property includes another’s account(s), domain name(s), URL(s), website(s), network(s),
system(s), facilities, equipment, data, other information, or business operations. You also agree not to use the Recursive Labs Service to gain unauthorized access to, use, monitor, make an unauthorized reference to, another’s property, unless you have the appropriate express prior consent to do so. Examples of prohibited actions include (without limitation): hacking, spoofing, denial of service, mailbombing and/or sending any email that contains or transmits any virus or propagating worm(s), or any malware, whether spyware, adware or other such file or program. You also agree not to use the Recursive Labs Service in a way that causes or may cause any Recursive Labs IP addresses, Recursive Labs domains, or Recursive Labs customer domains to be blacklisted. These restrictions apply regardless of your intent and whether or not you act intentionally or unintentionally.
4. Proper Usage of the Recursive Labs Service
You will respect the limits that apply to your use the Recursive Labs Service.
In addition, and without limiting the other requirements in this AUP, you may not (directly or indirectly) use the Recursive Labs Service with content, or in a manner that:
• is threatening, abusive, harassing, stalking, or defamatory;
• is deceptive, false, misleading or fraudulent;
• is invasive of another's privacy or otherwise violates another’s legal rights (such as rights of privacy and publicity);
• contains vulgar, obscene, indecent or unlawful material;
• infringes a third party's intellectual property right(s);
• publishes, posts, uploads, or otherwise distributes any software, music, videos, or other material protected by intellectualproperty laws (or by rights of privacy or publicity) unless you have all necessary rights and consents to do so;
• uploads files that contain viruses, corrupted files, or any other similar software or programs that may damage the
operation of another person's computer;
• downloads any file that you know, or reasonably should know, cannot be legally distributed in that way;
• falsifies or deletes any author attributions, legal or proprietary designations, labels of the origin or source of software, or
other material contained in a file that is uploaded;
• restricts or inhibits any other user of the Recursive Labs Service from using and enjoying our website and/or the Recursive Labs Service;
• harvests or otherwise collects information about others, including e-mail addresses, without their consent;
• violates the usage standards or rules of an entity affected by your use, including without limitation any ISP, ESP, or news
or user group (and including by way of example and not limitation circumventing or exceeding equipment use rights and
restrictions and/or location and path identification detail);
• is legally actionable between private parties;
• is not a good faith use of the service, such as use by a competitor to Recursive Labs for purposes of learning about our
services.
• is in violation of any applicable local, state, national or international law or regulation, including all export laws and
regulations and without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act) (15 U.S.C. § 7701 et seq.), the U.S Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227), the Do-Not-Call Implementation Act of 2003 (15 U.S.C. § 6152 et seq.; originally codified at § 6101 note), the Directive 2000/31/EC of the European Parliament and Council of 8 June 2000, on certain legal aspects of information society services, in particular, electronic commerce in the Internal Market ('Directive on Electronic Commerce'), along with the Directive 2002/58/EC of the European Parliament and Council of 12 July 2002, concerning the processing of personal data and the protection of privacy in the electronic communications sector ('Directive on Privacy and Electronic Communications'), regulations promulgated by the U.S. Securities Exchange Commission, any rules of national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, the Personal Information Protection and Electronic Documents Act (PIPEDA) (S.C. 2000, c. 5), Canada’s Anti-Spam Legislation (CASL) (S.C. 2010, c.23), Japan’s Act on Regulation of Transmission of Specified Electronic Mail (Act No. 26 of April 17, 2002) and any regulations having the force of law or laws in force in your or your email recipient's country of residence.
You will use the Recursive Labs Service for your internal business purposes and will not: (i) willfully tamper with the security of the Recursive Labs Service or tamper with our customer accounts; (ii) access data on the Recursive Labs Service not intended for you; (iii) log into a server or account on the Recursive Labs Service that you are not authorized to access; (iv) attempt to probe, scan or test the vulnerability of any Recursive Labs Service or to breach the security or authentication measures without proper authorization; (v) willfully render any part of the Recursive Labs Service unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the Recursive Labs Service or make the Recursive Labs Service available to a third party other than as contemplated in your subscription to the Recursive Labs Service; (vii) use the Recursive Labs Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (viii) provide to third parties any evaluation versionof the Recursive Labs Service without our prior written consent.
9. General Terms
We may immediately suspend your access to the Recursive Labs Service if you breach this AUP or don’t respond to us in a
reasonable period after we’ve contacted you about a potential breach of this AUP. If you breach this AUP, we may terminate your subscription agreement for cause. You acknowledge we may disclose information regarding your use of any Recursive Labs Service to satisfy any law, regulation, government request, court order, subpoena or other legal process. If we make this type of required disclosure we will notify you, unless we are required to keep the disclosure confidential.
We are not obligated to, but may choose to, remove any prohibited materials and deny access to any person who violates this AUP. We further reserve all other rights.We may update and change any part or all of this AUP so we encourage you to review this AUP periodically.