Last Updated July 28, 2020
These terms and conditions, including the Privacy Policy available at https://getrecordset.com/privacy-policy.html, (collectively, these "Terms of Service") shall apply to your access to and use of the RecordSet cloud-based service (whether via the RecordSet app (including updates, upgrades, and alternatively-branded versions thereof), a related app, or via a web browser) (the "Services") provided to you (collectively, "you," "your," or "User") by RecordSet Imaginations, Inc. ("we," "us," "our," or "RSI") and located at https://getrecordset.com or any other associated websites owned or operated by RSI (collectively, the "Site"). These Terms of Service form a binding contract between you and RSI.
By accessing or using the Site or the Services in any manner, you agree that these Terms of Service shall apply to your access and use of the Site and Services and that you shall be bound by the Terms of Service set forth herein. By accessing the Site or Services via the RecordSet app (including updates, upgrades, and alternatively-branded version therof) or a related app, you also agree to the End User License Agreement associated with the RecordSet app and disclosed via such app.
If you don't agree, then you may not access or use the Site or the Services. If you are accessing and using the Site or Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service. In that case, "you" and "your" will refer to that company or other legal entity.
CHANGES TO THESE TERMS OF SERVICE, THE SITE, OR THE SERVICES
We may change these Terms of Service at any time. If we do so, we'll let you know either by posting the changed Terms of Service on the Site or through other communications. We'll also update the "Last Updated" date at the top of these Terms of Service. It's important that you review the changed Terms of Service, because if you continue to access and use the Site or the Services after we've provided notice of the change, you're telling us that you agree to be bound by the changed Terms of Service. If you don't agree to be bound by the changed Terms of Service, then you're not permitted to access or use the Site or the Services anymore. We're always striving to make the Site and Services better, and, because they're evolving over time, we may change or discontinue all or any part of the Site or Services, at any time and without notice, at our discretion.
USING THE SERVICES
Eligibility
You are not permitted to access or use the Services unless you are eighteen (18) years old or older.
Registration
In order to use the Services, you may need to create an account with a username and password (an "Account").
It's important that you provide us with accurate and complete information, and you promise to keep your Account information up to date. If you don't, we may have to suspend or terminate your Account. You agree not to share your password and you'll let us know if you become aware of any unauthorized use of your Account. You are responsible for all activities that occur under your Account.
Authorized Users
You may be able to authorize additional users to use your account ("Authorized Users"). You are responsible for the conduct of any Authorized Users on your Account.
License
You are hereby granted a limited, non-exclusive, revocable, non-transferable, and non-sublicensable license for you and your Authorized Users to access and use the Site and Services in accordance with these Terms of Service and instructions provided on the Site. No other intellectual property rights of any kind are granted by RSI to you as a function of these Terms of Service.
As between you and RSI, RSI owns all rights in and to the Site and Services. RSI retains all rights to all works (including source code, object code, user interfaces, documentation, or other works), algorithms, data, inventions, discoveries, ideas, designs, trade secrets, tangible or intangible, embodied in the Services or the Site, or created or reduced to practice in performance of the Services, including without limitation all copyrights, patent rights, trade secret rights, trademark rights, moral rights, and other intellectual property rights to and in the Site and the Services in the United States and all other countries, including the right to pursue patents, utility models, or industrial design applications in the United States and all other countries. RSI does not transfer any rights to any portion of the Site or the Services to you or any third party, and delivery of any Services to you shall not constitute any transfer of rights.
The RecordSet name, the RecordSet logo, and all related names, logos, product and Services names, designs, and slogans are trademarks of RSI or its affiliates or licensors. You must not use such marks without the prior written permission of RSI.
PAYMENTS
You will be responsible to pay the total purchase price for your access and use of the Services as set forth on the Site or in other communications to you by RSI. Such prices may include or be subject to additional applicable tariffs, customs, duties, or taxes (including any value-added taxes).
USER CONTENT AND DATA
"User Content and Data" means any text, graphics, images, music, software, audio, video, works of authorship of any kind, and information, or other materials, or data that is posted, generated, provided, or otherwise made available by you for your use on the Site or the Services. This includes, for instance, floorplans and digital photographs of your home or other building for which you are accessing and using the Site or Services.
You agree that your User Content and Data is true, complete, and accurate, and, to the extent RSI determines, in its sole discretion, that any User Content and Data is not true, complete, and accurate, RSI may charge your account applicable fees consistent with corrected information, whether provided by you or determined by RSI in its reasonable discretion.
RSI does not claim any ownership rights in any User Content Data and nothing in these Terms of Service will be deemed to restrict any rights that you may have to use and exploit your User Content and Data. You grant RSI a limited license in your User Content and Data solely for the purpose of providing the Services to you, including for access by others of the Site or Services to view or interact with your User Content and Data. No other rights in User Content and Data are granted by you to RSI as a function of these Terms of Service. There may be circumstances in which the Site or 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 User Content and Data. RSI is not responsible for any failure of the Site or Services to prompt you for a complete set of applicable User Content and Data, or for your failure to submit a complete set of applicable User Content and Data regardless of whether you were prompted by the Site or Services.
You are solely responsible for all your User Content and Data. You represent and warrant that you own all your User Content and Data, or you have all rights that are necessary to grant us the license rights in your User Content and Data under these Terms of Service. You also represent and warrant that neither your User Content and Data, nor your use and provision of your User Content and Data, nor any use of your User Content and Data by RSI on or through the Site or Services will infringe, misappropriate, or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You further agree that your User Content and Data will be compliant with the Conduct Terms of Service set forth below.
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 User Content and Data, 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 User Content and Data, the Site, or the Services is actually warranted, appropriate, or safe. RSI is not responsible for any damage resulting from an error or bug that causes the Site or Services to provide inaccurate information, or to fail to provide information, to you.
You are advised to backup your User Content and Data via the applicable feature of the Services. RSI does not guarantee the availability of your User Content and Data via the Site or Services, and shall not be responsible for any loss of User Content and Data for any reason.
FEEDBACK
We welcome your input for improvements to the Site and Services. If you decide to provide ideas, comments, suggestions or other feedback to us (whether written, verbal, or in any other format) in connection with the Site, Services, or these Terms of Service ("Feedback"), you acknowledge and agree that we have no obligation (whether of confidentiality, compensation, or otherwise) with respect to such Feedback and we will be free to use and exploit such Feedback in any manner without restriction of any kind. You agree that all Feedback will be the sole and exclusive property of RSI. You hereby agree to irrevocably transfer and assign to RSI all of your rights, title, and interest in and to all Feedback, including all intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect, and maintain our intellectual property rights and other legal protections for the Feedback. Further, you acknowledge and agree that RSI may currently, or in the future, be developing information and materials internally, or receiving information and materials from other parties, that are similar to your Feedback or User Content. Nothing in these Terms of Service will be construed as a representation or agreement that we will not develop or have developed, distribute, market or promote applications, Services, products, or concepts that are similar to and/or compete with the applications, Services, products, or concepts contemplated by or embodied in any Feedback or your User Content and Data.
CONDUCT TERMS OF SERVICE
You agree that you'll only use the Site and Services in a manner that is consistent with the requirements set forth below and as provided on the Site. If you don't, we may choose to suspend or terminate your Account and your access to and ability to access and use the Site and/or Services, with no refund for any fees paid. In connection with your use of the Site and Services, you agree that you won't:
· Use the Site or Services in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);
· copy, store, or otherwise access any information contained on/in the Site or Services for purposes not expressly permitted by these Terms of Service or that would violate any laws;
· interfere with or damage the Site or Services including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-Services attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
· use the Site or Services to collect or process any personal information in a manner that would violate any applicable data privacy laws or regulations, including without limitation, the European Union's General Data Privacy Regulation (GDPR) and the California Consumer Privacy Act (CCPA);
· register an Account under a false name or use an invalid or unauthorized credit card. You may not offer to purchase under a false name, impersonate any participant, or use another participant's password(s) or engage in any other fraudulent conduct or conduct intended to interfere with the orderly conduct of business on the Site or Services;
· post, upload, publish, submit, or transmit any User Content and Data that: (a) infringes, misappropriates, or violates a third party's patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy in any jurisdiction in the world; (b) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (c) is fraudulent, false, misleading, or deceptive; (d) is defamatory, obscene, pornographic, vulgar, or offensive; (e) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; or (f) is violent or threatening or promotes violence or actions that are threatening to any other person.
DISCLAIMER OF WARRANTY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR ACCESS AND USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SITE AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, RSI HEREBY EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE OR ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, CONTRACT, OR ANY OTHER BASIS. RSI MAKES NO WARRANTY, AND HEREBY EXPLICITLY DISCLAIMS ANY WARRANTY, THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, PROVIDE INFORMATION IN ALL OR ANY PARTICULAR CASES, WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS, OR THAT YOUR USER CONTENT AND DATA WILL NOT BE SUBJECT TO LOSS OR DELETION. RSI 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 SITE OR SERVICES. THE DISCLAIMERS HEREIN APPLY REGARDLESS OF THE DEGREE TO WHICH THE SITE OR SERVICES ARE PROVIDED IN WHOLE OR IN PART DIRECLTY BY RSI AND/OR BY A THIRD-PARTY SERVICE PROVIDER.
LIMITATION OF LIABILITY:
YOU ACKNOWLEDGE AND AGREE THAT, AS BETWEEN YOU AND RSI, TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU ASSUME THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE AND SERVICES.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL RSI BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER/DEVICE DAMAGE OR SYSTEM FAILURE, THE COST OF SUBSTITUTE SERVICES, OR ANY OTHER COMMERICAL DAMAGES OR LOSSES ARISING OUT OF OR OR RELATED TO YOUR USE OF OR INABILITY TO ACCESS OR USE THE SITE OR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT RSI HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE EXTENT RSI 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.
INDEMNIFICATION
You will defend, indemnify, and hold harmless RSI, its affiliates, and each of their investors, directors, officers, employees, attorneys, and agents from and against any and all third party damages, losses, liabilities, settlements and expenses (including costs and attorneys' fees), arising from or in connection with: (i) violation of applicable laws and/or regulations) by you, (ii) your access and use of the Site, the Services, or any part thereof, (iii) any violation or alleged violation of these Terms of Service.
Limitations on Indemnifications
GOVERNING LAW; VENUE; WAIVER OF CLASS ACTION AND JURY TRIAL
Except to the extent expressly provided in the following paragraph, these Terms of Service and the relationship between you and RSI 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.
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 RSI. For any dispute with RSI arising from or related to the Site or Services, 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 RSI 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 these Terms of Servcie, 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 RSI agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in these Terms of Service 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.
Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE ACCESSED OR USED THE SITE OR THE 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 RSI AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY AGREEING TO THESE TERMS OF SERVICE, YOU AND RSI 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.
GENERAL TERMS OF SERVICE
These Terms of Service (including the Privacy Policy) constitute the entire and exclusive understanding and agreement between RSI and you regarding the Site and Services, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between RSI and you regarding the Site and Services. If for any reason a court of competent jurisdiction finds any provision of these Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Service will remain in full force and effect.
You may not assign or transfer these Terms of Service, by operation of law or otherwise, without RSI's prior written consent. Any attempt by you to assign or transfer these Terms of Service without such consent will be void ab initio. RSI may freely assign or transfer these Terms of Service without restriction. Subject to the foregoing, these Terms of Service will bind and inure to the benefit of the parties, their successors, and permitted assigns.
Any notices or other communications provided by RSI under these Terms of Service, including those regarding modifications to these Terms of Service, will be given: (i) via email or through your Account; or (ii) by posting to the Site. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
RSI's failure to enforce any right or provision of these Terms of Service will not be considered a waiver of future enforcement of that right or provision or of any other right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of RSI. Except as expressly set forth in these Terms of Service, the exercise by either party of any of its remedies under these Terms of Service will be without prejudice to its other remedies under these Terms of Service or otherwise.
