RecordSet End User License Agreement
The RecordSet app is licensed, not sold, to you ("you," and "your") by RecordSet Imaginations, Inc. ("Licensor"). Your license to the RecordSet app is subject to your acceptance of this End User License Agreement ("EULA") which is a binding agreement between you and Licensor, and you also agree to the RecordSet Terms of Service at https://getrecordset.com/terms.html (the "Terms of Service") and Privacy Policy at https://getrecordset.com/privacy-policy.html (the "Privacy Policy"). BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING THE RECORDSET APP OR ANY SERVICES PROVIDED IN CONNECTION WITH THE RECORDSET APP, OR CONTINUING USE OF THE RECORDSET APP OR SERVICES AFTER REVISION OR UPDATE, YOU AKNOWLEDGE, REPRESENT, AND WARRANT THAT (I) YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS EULA, THE TERMS OF SERVICE, AND THE PRIVACY POLICY, AND (II) YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE AND HAVE THE RIGHT, AUTHORITY, and CAPACITY TO ENTER INTO THIS EULA. If you are not eighteen (18) years of age, or do not agree to the terms of this EULA, you may not use the RecordSet app. Licensor expressly reserves all rights in and to the RecordSet app not expressly granted to you under this EULA. As used herein, "RecordSet app" refers to all versions of the RecordSet app (including updates, upgrades, and alternatively-branded versions) as well as to any related apps provided by Licensor.
1. Scope of License. Licensor grants to you a limited, non-exclusive, revocable, non-sublicensable and non-transferable license to use the RecordSet app, for use on a single device that you own or control, in connection with and as permitted by the terms and conditions of this EULA. The terms of this EULA will govern any content, materials, or services accessible from or purchased via or within the RecordSet app as well as upgrades provided by Licensor that replace or supplement the version of the RecordSet app installed on your device, unless such upgrade is accompanied by its own additional or different terms and conditions, in which case such additional or different terms or conditions shall be incorporated into this EULA and apply going forward. Your continued use of the RecordSet app following such upgrade shall constitute your acceptance of such additional or different terms and their incorporation into this EULA. You may not transfer, redistribute, or sublicense the RecordSet app. You may not copy, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the RecordSet app, any updates, or any part thereof (except only to the extent that any foregoing restriction is prohibited by applicable law or permitted by the licensing terms governing use of any open-source components incorporated in the RecordSet app). You may not remove, alter, or obscure any trademark, copyright, patent or other intellectual property or other proprietary rights notices from the RecordSet app or any copy thereof. You may not alter, disable, remove, circumvent or otherwise access any copy protection or other security feature, or transmit any advertisements, spam, or content not related to the home construction and maintenance documentation purpose of the RecordSet app, whether through the RecordSet app itself, or the service(s) with and/or through which it operates (the "Services").
2. Ownership.
a. As between you and Licensor, you will be the owner of any content created by you in the course of your use of the RecordSet app. Licensor is and shall be the sole owner of the RecordSet app, the Site, and the Services and all components thereof, including intellectual property and other proprietary rights of every kind and nature however denominated throughout the world, registered or unregistered, associated with the RecordSet app, the Site or the Services.
b. Licensor will own all suggestions, ideas, enhancement requests, feedback, recommendations, comments, or other information provided by you with respect to the RecordSet app, the Site, and Services and any related intellectual property rights therein ("Feedback"), and you hereby assign to Licensor all right, title, and interest in and to Feedback.
c. All names, logos, taglines, product and service names, designs, and slogans that appear on or in association with the RecordSet app or the Services (the "Marks") are trademarks of Licensor or its affiliates or licensors. You may not use the Marks without the prior written consent of Licensor. All other names, brands, and marks that may appear on or in association with the RecordSet app, the Site, or the Services remain the property of their respective owners and appear for identification purposes only.
2. Privacy; Consent to Use of Data. Any personal information collected by Licensor in connection with your use of the RecordSet app and/or the Services (defined in Section 4) will be governed by Licensor's Privacy Policy available here: https://getrecordset.com/privacy-policy.html and you agree to the terms of the Privacy Policy. You agree that Licensor may collect and use technical data and related information-including but not limited to technical information about your device, system and application software, and peripherals-that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the RecordSet app. You agree that Licensor may use this information, as long as it is in a form that does not personally identify you except as needed to communicate with you about such updates, support, and other services., to improve its products or to provide services or technologies to you. Further, you grant to Licensor the right to use any information that you provide or upload in the RecordSet app in accordance with the Privacy Policy. You agree that your personal information and information or content you enter into the RecordSet, including any photographs and/or descriptive data, app may be backed up via the Services in order to provide app support and additional access services.
3. Termination. This EULA is effective until terminated by you or Licensor. Licensor may terminate this EULA at any time without notice and reserves the right to cease to support the RecordSet app in its sole discretion. Your rights under this EULA will terminate automatically if you fail to comply with any of its terms, including, but not limited to, any use which is: inconsistent with the purpose for which the RecordSet app is offered (as contemplated by Licensor's advertising and web site, and including but not limited to submitting false or misleading data regarding the homes or other structures for which photographs are purportedly submitted), illegal, harassing, defamatory, hate speech, obscene, pornographic, vulgar, offensive, violent or promoting violence, or otherwise objectionable. Upon termination for any reason, all rights granted to you under this EULA will also terminate, and you must cease use of the RecordSet app and all related services. Termination shall not limit Licensor's rights or remedies at law or in equity.
4. Services. The RecordSet app may enable access to Licensor's and websites (respectively, the "Services" and the "Site") and/or to third-party services and websites (the "Third Party Services"). You agree to use the Services, Site, and Third Party Services at your sole risk. Licensor is not responsible for examining or evaluating the content or accuracy of any Third Party Services, and shall not be liable for any Third Party Services. You will not use the Services or Site in any manner that is inconsistent with the terms of this EULA or the terms and conditions of applicable Third Party Services, or that infringes the intellectual property or other rights of Licensor or any third party. You agree not to use the RecordSet app, the Site, or the Services to harass, abuse, stalk, threaten, or defame any person or entity, and that Licensor is not responsible for any such use by you or by others. The Site and Services may not be available in all languages or in all countries (including the country in which you reside), and may not be appropriate or available for use in any particular location. To the extent you choose to use the RecordSet app, the Site, the Services,, or any Third Party Services you are solely responsible for compliance with any applicable laws. Licensor reserves the right to change, suspend, remove, disable, or impose access restrictions or limits on the Site and Services at any time without notice or liability to you.
5. Disclaimer of Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE RECORDSET APP IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RECORDSET APP AND ANY SERVICES PERFORMED, PROVIDED, ENABLED, OR ACCESSED BY THE RECORDSET APP ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY EXPLICITLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE RECORDSET APP, THE SITE, AND/OR THE SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF SECURITY, OF ACCESSIBILITY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSOR MAKES NO WARRANTY THAT THE RECORDSET APP OR THE SERVICES WILL MEET YOUR REQUIREMENTS, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, PROVIDE INFORMATION IN ALL OR ANY PARTICULAR CASES, OR WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS, OR THAT YOUR DESCRIPTIVE DATA, FLOORPLANS, AND PHOTOGRAPHS WILL NOT BE SUBJECT TO LOSS OR DELETION. LICENSOR FURTHER DISLCAIMS ANY WARRANTY REGARDING YOUR ABILITY TO SATISFACTORILY OR SAFELY COMPLETE A REPAIR OR RENOVATION, COLLECT ON AN INSURANCE CLAIM, COLLECT OR RECOVER A DAMAGE DEPOSIT, OR ANY FINANCIAL OR SIMILAR TRANSACTION REGARDING ANY PROPERTY FOR WHICH YOU USE THE RECORDSET APP, THE SITE OR THE SERVICES. THE DISCLAIMERS HEREIN APPLY REGARDLESS OF THE DEGREE TO WHICH THE RECORDSET APP, THE SITE OR THE SERVICES ARE PROVIDED IN WHOLE OR IN PART DIRECLTY BY LICENSOR AND/OR BY A THIRD-PARTY SERVICE PROVIDER.
6. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER/DEVICE DAMAGE OR SYSTEM FAILURE, THE COST OF SUBSTITUTE SERVICES, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE RECORDSET APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGE, OR IF SUCH LOSS OR DAMAGE WAS FORESEEABLE. IN NO EVENT SHALL LICENSOR'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED AN AMOUNT EQUAL to FEES PAID, IF ANY, FOR USE OF THE RECORDSET APP OR THE SERVICES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. TO THE EXTENT LICENSOR IS LIABLE FOR DIRECT DAMAGES TO YOU, SUCH LIABILITY SHALL BE LIMITED TO THE FEES PAID BY YOU FOR ONLY THAT INSTANCE, PORTION, OR OTHER SUBSET OF THE SERVICES FROM WHICH SUCH LIABILITY DIRECTLY ARISES AND NO GREATER THAN THE TOTAL FEES PAID BY YOU FOR ACCESS AND USE OF THE SITE AND/OR THE SERVICES FOR THE PRECEEDING SIX-MONTH PERIOD.
There may be circumstances in which the RecordSet app, the Site, or the Services is not configured in anticipation of the particular features of your house or building, and therefore may not prompt you for a complete set of applicable descriptive data or photographs. Licensor is not responsible for any failure of the RecordSet app, the Site, or the Services to prompt you for a complete set of descriptive data or photographs, or for your failure to submit a complete set of descriptive data or photographs regardless of whether you were prompted by the RecordSet app, the Site, or the Services.
You are also solely responsible for all action or inaction taken by you (or at your direction or for your benefit by a third party) based on your descriptive data and photographs, the RecordSet app, the Site, or the Services. It is your sole responsibility to confirm that any action or inaction you propose to take in light of your descriptive data and photographs, the RecordSet app, the Site, or the Services is actually warranted, appropriate, or safe. Licensor is not responsible for any damage resulting from an error or bug that causes the RecordSet app, the Site, or the Services to provide inaccurate information to you.
Notwithstanding anything to the contrary in this EULA, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes Terms of Service other than a full release of liability for the indemnified parties and the payment of money.
8. Export. You may not use or otherwise export or re-export the RecordSet app except as authorized by United States law and the laws of the jurisdiction in which the RecordSet app was obtained. In particular, but without limitation, the RecordSet app may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the RecordSet app, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
9. Applicable Law. Except to the extent expressly provided in the following paragraph, this EULA and the relationship between you and Licensor shall be governed by the laws of the State of California, excluding its conflicts of law provisions.
Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.
10. Dispute Resolution - Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM LICENSOR. For any dispute with Licensor arising from or related to the RecordSet app, you agree to first contact us at legal@getrecordset.com and attempt to resolve the dispute with us informally. In the unlikely event that Licensor has not been able to resolve a dispute it has with you after sixty (60) days of your email, you and Licensor agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this EULA, or the breach or alleged breach thereof (collectively, "Claims"), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and Licensor agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this EULA shall be deemed as preventing Licensor from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of Licensor's data security, intellectual property rights, or other proprietary rights.
11. Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE RECORDSET APP OR SERVICES FOR PERSONAL, COMMERCIAL, OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS YOU AND LICENSOR AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS EULA, YOU AND LICENSOR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
12. Severability. If any provision of this Agreement is determined to be unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
13. Limitation of Time to File Claims. ANY CAUSE OF ACTION, CLAIM OR DISPUTE YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS EULA OR THE RECORDSET APP OR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
14. Entire Agreement. This EULA constitutes the entire agreement between you and Licensor with respect to the RecordSet app and services and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the RecordSet app.
15. Waiver. Except as barred in Section 13 of this EULA, no failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
16. Modification/Revision. This EULA is subject to modification or revision at any time by Licensor in its sole discretion. Any modifications will be posted on the website and/or communicated through the RecordSet app, as applicable. Your continued use of the RecordSet app or Services after posting of such modifications will constitute your acceptance of the modifications or revisions. The date of the last revision is listed at the end of this EULA.
17. Apple/iOS-Specific Terms. In the case that you are using the iOS version of the RecordSet app, the terms of this section apply. This EULA is between you and Licensor. Apple Corporation ("Apple") is not a party to this EULA. Apple has no obligation whatsoever to furnish any maintenance or supports services with respect to the RecordSet app or the Services. To the maximum extent permitted by law, Apple will have no warranty obligation whatsoever with respect to the RecordSet app or the Services, except that, in the event of any failure of the RecordSet app to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the RecordSet app to you. Apple is not responsible for addressing any claims by you or any third party relating to the RecordSet app or the your possession and/or use of same, including, but not limited to: (i) product liability claims; (ii) any claim that the RecordSet App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, including in connection with the RecordSet app's use of the HealthKit and HomeKit frameworks. In the event of any third party claim that the RecordSet app or your possession and use of same infringes that third party's intellectual property rights, Licensor, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Apple, and Apple's subsidiaries, are third party beneficiaries of this EULA, and that, upon your acceptance of the terms and conditions of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against you as a third party beneficiary thereof.
18. Licensor's Contact Information. For questions, complaints, or claims with respect to the RecordSet App should be directed to:
RecordSet Imaginations, Inc. 340 S. Lemon Ave #1703 Walnut, CA 91789 Telephone: +1 (650) 382-3221 Email: legal@getrecordset.com
Revised: July 28, 2020
