Terms of Services
Last Updated: June 26th, 2023
TERMS OF SERVICE
THESE TERMS OF SERVICE (“TOS”) GOVERN CLIENT’S USE OF THE RECAPPED SERVICES. BY EXECUTING A SALES AGREEMENT THAT REFERENCES THESE TOS, OR BY OTHERWISE USING THE SERVICES (INCLUDING BUT NOT LIMITED TO BY SIGNING UP FOR A FREE ACCOUNT), CLIENT AGREES TO THE TERMS OF THESE TOS.
a. “Affiliate” means, as to any individual, corporation, partnership, limited liability company, association, trust, unincorporated entity, or other legal entity (each a “Person”), any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or under common control with such Person. As used in this definition, “control” (including, with correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
b. “Agreement” means these TOS together with the Sales Agreement(s) signed by the Parties.
c. “Authorized Users” means an employee, contractor, customer, potential customer, or other user authorized by Client or its Affiliate who has been issued a user account to access the Software by Recapped, in accordance with the terms of the applicable Sales Agreement.
d. “Client” means the individual, company, or other legal entity which has entered into a Sales Agreement with Recapped.
e. “Client Content” means the information and content uploaded to the Software by Authorized Users.
f. “Fees” means the Service Fee and any other fees set forth in a Sales Agreement, including but not limited to any professional services fees.
g. “Free Account” means a user account with limited access to the Software, for which there is no Sales Agreement.
h. “Service Fee” means the fee for the Services, as set forth in a Sales Agreement.
i. “Party” means either Recapped and Client individually, and “Parties” means Recapped and Client collectively.
j. “Personal Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person.
k. “Recapped” means Recapped, Inc., a Delaware corporation.
l. “Sales Agreement” means the Sales Agreement referencing these TOS and signed by the Parties, which describes the Services and any related terms.
m. “Services” means the access to the Software provided by Recapped to Client pursuant to this Agreement and any other services set forth in an applicable Sales Agreement.
n. “Software” means Recapped’s software-as-a-service solution located at app.recapped.io.
o. “Start Date” means the start date set forth in a fully executed Sales Agreement.
p. “Supported Platforms” means third party websites and services that the Software interoperates with, including but not limited to Google, LinkedIn, Microsoft, HubSpot, and Salesforce.
a. Sales Agreements. Recapped shall provide the Services described in each Sales Agreement executed by the Parties. Where Recapped and Client have entered into a Sales Agreement, such Sales Agreement, together with the terms of these TOS, shall constitute a separate contract for the applicable Services. In the event of a conflict between the terms of these TOS and any Sales Agreement, the terms of these TOS shall prevail unless the applicable Sales Agreement references the provision of these TOS to be amended or deleted.
b. License and Ownership. Subject to the payment of all Fees due under the Agreement, Recapped hereby grants to Client and its Affiliates a limited, non-exclusive, non-sublicensable, non-transferrable (except in connection with Section 19) license during the Term to allow Client’s Authorized Users to access the Software. Aside from the foregoing license, Recapped shall retain all ownership and intellectual property rights in and to the Software.
c. Account Ownership. Recapped will consider Client to be the owner of the user account(s) issued to Client and its Authorized Users under the applicable Sales Agreement. However, in case of a dispute relating to the ownership of a user account, Recapped reserves the right to determine such ownership based on its reasonable judgment, whether or not an independent investigation has been conducted by Recapped and Recapped shall have no liability to Client or to any other party. Recapped may request documentation relevant to determine ownership.
If Client is an individual that has signed up for the Services in an individual capacity with their employer email address, Recapped will not transfer access to Client’s existing Recapped account to another email address, unless: (i) Recapped is expressly instructed to do so, in writing, by the owner of the domain name to which the email address associated with Client’s account is directed; and (ii) sufficient and adequate documentation to prove the foregoing is provided to Recapped’s satisfaction. Should Client lose access to the email address associated with Client’s account, Recapped may grant Client credit in the amount of time left under Client’s initial Sales Agreement for the creation of a new account with a different email address.
d. Restrictions. Client shall not, and shall not permit its Affiliates, any Authorized User, or other third party to, make any use of the Software or Services that is not expressly permitted under this Agreement. Without limiting the foregoing, Client shall not, and shall not permit its Affiliates, any Authorized User, or other third party to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Software; (ii) modify, adapt, or translate the Software; (iii) reproduce, resell, distribute, or sublicense the Software; (iv) make the Software available on a “service bureau” basis, or otherwise allow any third party to use or access the Software; (v) use the Software for purposes of: (A) benchmarking or competitive analysis of the Software or Services, or (B) developing, using or providing a competing software or Services product or service; (vi) introduce into the Software any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; or (vii) take any action that imposes or may impose (as determined by Recapped in its sole discretion) an unreasonable or disproportionately large load on Recapped’s (or its Supported Platforms’) infrastructure or otherwise interfere with the proper working of the Software. Client, its Affiliates, and its Authorized Users shall comply with all applicable laws, rules, and regulations governing the use of the Software and Services. Client shall restrict its access to and use of the Software to Authorized Users only and be solely responsible for its and its Affiliates and Authorized User’s use of the Software and Services. If Client or its Affiliate becomes aware of any unauthorized use or access to the Software, Client or the applicable Affiliate shall immediately take steps to terminate the unauthorized use or access and promptly notify Recapped of the same. In the event there is a breach or threatened breach by Client of any of the restrictions set forth in this subsection 2(c), Recapped shall be entitled to an injunction without the posting of a bond to restrain Client from engaging in the activities the above prohibited activities, and Recapped will further be entitled to reimbursement for all costs and expenses, including reasonable attorneys' fees, in connection therewith.
e. Feedback. Client or its Affiliates may, but are not obligated to, provide suggestions, enhancement requests, recommendations, or other feedback to Recapped (“Feedback”). Client hereby grants, and shall cause its Affiliates to grant, to Recapped a royalty-free, perpetual, irrevocable, fully sublicensable, transferable, and worldwide license to use, disclose, reproduce, license, distribute, and exploit such Feedback, and incorporate Feedback into the Software, Services, and its other services, products, technologies, documentation or any other development with no obligation to pay, attribute, license or to make available to, Client, its Affiliate, or any third party.
a. Fees. In consideration for the Services, Client will pay to Recapped the Fees set forth in the applicable Sales Agreement. Unless otherwise set forth in the applicable Sales Agreement, all payments of Fees shall be made in U.S. Dollars within fourteen (14) days of the date of Recapped’s invoice. Fees are exclusive of taxes and Client is solely responsible for all sales, use, value added, goods and services, consumption, excise, local stamp, or other tax, duty or other charge of any kind or nature, excluding tax that is based on Recapped’s net income, associated with the Software or Services, including any related penalties or interest. Fees are not applicable to Free Accounts.
b. Disputes and Late Payment. If Client disputes in good faith all or any portion of an invoice, then Client shall timely pay to Recapped all undisputed amounts and provide written notice to Recapped of the amount of and basis for the dispute on or before the invoice due date, and the Parties will negotiate in good faith to expeditiously resolve the dispute. Any undisputed payments not made when due shall bear interest at a rate equal to the lesser of: (i) one percent (1%) per month, or (ii) the maximum rate allowed by applicable law.
c. Suspension. If Client fails to: (i) make any undisputed payment due to Recapped in accordance with the terms of this Agreement within thirty (30) days after Recapped’s written notice to Client that such payment is past due, or (ii) materially perform its other obligations under this Agreement and such failure continues for thirty (30) days after Recapped’s written notice to Client thereof (and such failure is not otherwise excused), in addition to and without restricting its right to terminate, Recapped shall have the right to suspend access to the Software and performance of the Services until Client has paid in full all amounts owed or performed all outstanding obligations, as applicable. If Recapped suspends its Services in accordance with the provisions of this Section, Recapped shall have no liability to Client for delay or damages caused to Client by such suspension.
4. Term and Termination.
a. Term. This Agreement shall become effective as of the Start Date set forth in the initial Sales Agreement between the Parties and shall remain in effect for a period of one (1) year (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive one (1) year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”). This Agreement may be terminated by either Party by providing written notice to the other Party at least thirty (30) days prior to the end of the Initial Term or the then-current Renewal Term. If this Agreement is terminated while one or more Sales Agreement(s) are still in progress, the terms and conditions of this Agreement shall survive with respect to such Sales Agreement(s) until termination or expiration of the same.
b. Termination. This Agreement may be terminated: (i) by Recapped immediately upon Client’s material breach of this Agreement, including but not limited to breach of Section 2(c), 3(a), 5(b), or 7(b); or (ii) by either Party effective immediately if all or a substantial portion of the assets of the other Party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy or a proceeding is commenced by or against the other Party for relief under the bankruptcy or similar laws and such proceeding is not dismissed within ninety (90) days.
c. Effect of Termination. Upon the termination or expiration of this Agreement: (i) except as set forth in this Section, the rights and licenses granted by Recapped to Client in this Agreement will cease immediately; (ii) Recapped will, except as otherwise permitted under this Agreement or required by law, delete the Client Content within a reasonable amount of time; and (iii) Client may, prior to termination, request reasonable additional time to export its Client Content, provided that Recapped may charge Client for this extended access based on Recapped’s then-current standard fees.
d. Free Trial. Notwithstanding anything to the contrary herein, if Client signs up for a free trial of the Services, Recapped will make the applicable Service(s) available to Client on a trial basis free of charge until the earlier of: (i) the end of the free trial period for which Client registered to use the applicable Service(s); (ii) the Start Date of any purchased Services as set forth in the applicable Sales Agreement with Client for such Service(s); or (iii) termination by Recapped at any time.
e. Free Account. If Client signs up for a Free Account, Recapped will make the Services then-applicable to a Free Account available to Client until termination by Recapped.
5. Client Content.
a. Use of Client Content. By uploading Client Content to the Software, Client provides to Recapped, and Recapped’s service providers acting on its behalf to provide the Services, the right to store, transmit, process, use, and disclose the Client Content and other information which Recapped may obtain as part of Client’s use of the Services: (i) as necessary for Recapped to provide the Services; (ii) as otherwise permitted by this Agreement; (iii) as required by law, rule, regulation or order; and/or (iv) to respond to an emergency. Client understands and agrees that when an Authorized User shares Client Content through the Software, third parties may access and use such Client Content in any way without further restriction or compensation to Client. Except as otherwise provided in this Agreement, Recapped retains no rights in the Client Content. Notwithstanding anything to the contrary in this Agreement, Recapped shall be entitled to retain Client Content for archival, audit, disaster recovery, legal and/or regulatory purposes, provided that Recapped will not use the retained Client Content for any other purpose. Client agrees that Recapped has the right to generate aggregate and anonymous data based on Authorized Users’ use of the Services and this data is owned by Recapped. Recapped may use this data for any business purpose during or after the Term of this Agreement (including without limitation to develop and improve Recapped’s products and services and to create and distribute reports and other materials). Recapped may also retain data collected by third party usage tracking services in aggregate form, for the purposes of maintaining historical information on usage of Recapped Services. Recapped will not disclose any aggregate or anonymous data externally in a manner that could reasonably identify Client or any Authorized User.
b. Acceptable Client Content. Client is solely responsible for all Client Content, including but not limited to the accuracy, reliability, integrity, quality, or validity of any statement or any other detail contained in the Client Content. Client will not use the Software or Services in any manner, or provide any Client Content, that: (i) infringes (or results in the infringement of) Recapped’s or any third party’s intellectual property or other rights; (ii) is illegal, fraudulent, or unauthorized, or in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or that Client reasonably believes to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material; (iii) would cause Recapped to be in violation of any law or regulation, or to infringe any right of any third party; or (iv) violates Recapped’s Acceptable Use Policy, as may be updated from time to time and which is incorporated by reference herein. Client agrees that Recapped shall have the right to remove Client Content and/or terminate the account of any Authorized User that violates any of the foregoing restrictions or that it determines to be a “repeat infringer” in accordance with Recapped’s DMCA Policy. Client shall not store, transmit or otherwise process any information via the Services that falls within the definition of “Protected Health Information” under the Health Insurance Portability and Accountability Act Privacy Rule (45 C.F.R. Section 164.051) or the definition of “Personal Data” under the General Data Protection Regulation without first entering into a separate agreement with Recapped with respect to such information.
c. Security. During the Term, Recapped will maintain an information security program that includes appropriate administrative, technical, and physical safeguards and other security measures designed to: (i) protect the security of the Services, Client Content, and Personal Information in a manner consistent with applicable industry standards; (ii) protect against any anticipated threats or hazards to the security or integrity of the Services, Client Content, and Personal Information; and (iii) protect against unauthorized processing, loss, use, disclosure or acquisition of or access to any Services, Client Content, and Personal Information.
e. Deletion of Accounts. If Client requests Recapped to delete an Authorized User’s account, access to such account will be disabled and the data associated with the account may be permanently deleted from Recapped’s servers. Copies of the information associated with the deleted account may remain viewable elsewhere to the extent it has been publicly published or otherwise shared with others by the Authorized User.
6. Third Parties.
a. Third Party Sites and Content. Client understands that the Services may contain, or that Client may receive from Recapped or other users, links to other web sites (“Third Party Sites”) or content posted, owned or originating from third parties such as, by way of example only, pictures, designs, photographs, graphics, text, sound, video, information, software, applications and any other content (“Third Party Content”). Client understands and agrees that: (i) Recapped is not responsible for, and does not control, Third Party Sites and Third Party Content; (ii) Recapped is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, information, products, or other materials on or available from such Third Party Sites and Third Party Content. Client acknowledges and agrees that Recapped shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, information, products, or services available on or through any such Third Party Site or Third Party Content.
b. Supported Platforms. Some features of the Software and Services interoperate with Supported Platforms. Client acknowledges and agrees that some of the Services provided are highly dependent on the availability of such Supported Platforms. If at any time any Supported Platforms cease to provide availability to Recapped on reasonable terms, Recapped may cease to provide such features to Client without entitling Client to refund, credit, or other compensation. In order to use the features of the Services related to the Supported Platforms, Client and its Authorized Users may be required to register for or log into such Supported Platforms on their respective websites.
c. APIs. The Software and Services may also, from time to time, access Third Party Content by accessing third party Application Programing Interfaces (“APIs”) within the Software. Client understands and agrees that the Software and Services are not endorsed, certified, or otherwise approved in any way by the third party providing such API and the provider of the API is not responsible for the Software and Services. Notwithstanding any license provided under this Agreement: (i) any such third party API is provided “as-is,” without any warranties and all implied warranties, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement, are expressly disclaimed; (ii) Client shall not modify or create derivative works based on any part of any such third party API; (iii) Client shall not decompile, reverse-engineer, disassemble, and/or otherwise reduce any such third party API to source code or other human-perceivable form, to the full extent allowed by law; and (iv) ownership of any such third party API and any services related to any such third party API remain with the owner of the API.
a. General Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized and validly existing under the laws of its jurisdiction of incorporation or formation; (ii) it has full corporate or other power and authority to enter into this Agreement and to carry out the provisions hereof; and (iii) it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder, and the person or persons executing this Agreement on its behalf has been duly authorized to do so by all requisite corporate or partnership action.
b. Client Representations and Warranties. Client represents and warrants that: (i) Client and its Authorized Users have the right to upload Client Content to the Software and grant the rights to Recapped set forth herein; (ii) the Client Content does not and will not infringe on the rights of any third party (including without limitation any intellectual property rights) and will comply with Recapped’s Acceptable Use Policy; and (iii) Client’s use of the Software and Services will not violate this Agreement, any agreement between Client and a third party, or any applicable law, rule, or regulation
c. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN, RECAPPED HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES (IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT (SUBJECT TO RECAPPED’S INDEMNITY OBLIGATION SET FORTH IN SECTION 8 BELOW), AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, OR FITNESS FOR A PARTICULAR PURPOSE. ALL SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. RECAPPED DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL MEET THE REQUIREMENTS OF CLIENT OR THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
a. Client Indemnification. Client shall indemnify, defend, and hold harmless Recapped, its directors, officers, employees, successors, and assigns, from and against any and all losses, liabilities, damages, claims, demands, litigation, expenses and liabilities (including related costs and reasonable attorneys’ fees) arising or resulting from Client’s: (i) breach of this Agreement; (ii) breach of any agreement between Client and a third party; or (iii) violation of any law, rule, or regulation.
b. Recapped Indemnification. Recapped shall indemnify, defend, and hold harmless Client, its directors, officers, employees, successors, and assigns, from and against any and all losses, liabilities, damages, claims, demands, litigation, expenses and liabilities (including related costs and reasonable attorneys’ fees) arising or resulting from a claim that the Software infringes the intellectual property rights of any third party under the laws of the United States. If the Software becomes, or, in Recapped's opinion, is likely to become, the subject of an infringement claim, Recapped may, at its option: (i) procure for Client the right to continue using the Software; (ii) replace or modify the Software to make it non-infringing; or (iii) if neither (i) nor (ii) are commercially reasonable, terminate this Agreement and all Sales Agreement(s) and refund any applicable prepaid but unused Service Fee
c. Indemnification Procedure. The Party to be indemnified under this Section 8 (the “Indemnified Party”) shall give the Party who is obligated to provide indemnification (the “Indemnifying Party”) prompt written notice of any claim that it is indemnified against hereunder; provided that any failure to give such notice shall not affect the Indemnifying Party’s indemnification obligations unless its ability to provide such indemnification is prejudiced in any material respect thereby. The Indemnifying Party shall have the right at any time during which such claim is pending to select counsel to defend and control the defense thereof and settle any claims for which it is responsible for indemnification hereunder, provided that the Indemnified Party shall have the right to participate, at its own expense, with counsel of its own choosing in the defense and/or settlement of the claim. Notwithstanding the foregoing, the Indemnifying Party shall not effect settlement of or compromise any such claim or proceedings without having obtained the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed; provided that Indemnifying Party may settle or compromise any such claim without the Indemnified Party’s consent if the settlement or compromise: (i) requires solely the payment of money damages, and (ii) includes the release by the claimant or the plaintiff of the Indemnified Party from all liability in respect of such claim.
9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES FOR LOSS OF USE OR INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RECAPPED’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID TO RECAPPED, PLUS THOSE THEN DUE AND OWING TO RECAPPED (BUT UNPAID), UNDER THE SALES AGREEMENT UNDER WHICH THE LIABILITY AROSE DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
IF CLIENT IS A CALIFORNIA RESIDENT, CLIENT WAIVES CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
10. Insurance. During the Term, Recapped shall maintain the following insurance: (a) workers’ compensation as required by applicable law; (b) employment practices liability insurance with limits no less than five hundred thousand dollars ($500,000) per occurrence and in the aggregate; (c) commercial general liability insurance with limits no less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the aggregate; (d) errors and omissions and cyberliability insurance with a limit no less than five million dollars ($5,000,000) per occurrence and in the aggregate; and (e) excess liability insurance with a limit no less than four million dollars ($4,000,000) per occurrence in the aggregate.
11. Governing Law and Venue. This Agreement will be deemed to have been made in and shall be construed pursuant to the laws of the State of New York, without regard to conflicts of laws provisions. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York, New York, and the parties hereby consent to the personal jurisdiction and venue therein.
12. Export Compliance. Client shall comply with all export laws, rules, and regulations of the United States and any other applicable jurisdiction pertaining to the Client Content. Client agrees that it will not directly or indirectly, export, re-export, import, or otherwise transfer the Client Content or related information, media, or products in violation of any applicable laws, rules, and regulations, including but not limited to those of the United States (collectively, “Export Laws”). Client accepts sole responsibility to ensure that Client and Client’s Authorized Users comply with the Export Laws applicable to Client and such Authorized Users.
13. Independent Contractor. Recapped shall perform its obligations hereunder as an independent contractor. Nothing contained herein shall be construed to constitute the Parties as principal and agent, employer and employee, partners or joint venturers, nor shall any similar relationship be deemed to exist between the Parties. Neither Party shall make any warranties or representations on behalf of the other Party. Each Party shall be solely responsible for payment of all compensation owed to its employees, as well as employment-related taxes.
14. Force Majeure. If either Party fails to fulfill its obligations hereunder (other than an obligation for the payment of money), when such failure is due to an act of God, or other circumstances beyond such Party’s reasonable control, including but not limited to fire, flood, telecommunication breakdowns, power outages or shortages, government order, law, or actions, hurricane, earthquake, plague, epidemic, pandemic, civil commotion, riot, war (declared and undeclared), terrorism, revolution, or embargoes (each, a “Force Majeure Event”), then said failure shall be excused for the duration of such event and for such a time thereafter as is reasonable to enable the Parties to resume performance under this Agreement, including any applicable Sales Agreement, provided however, that if any such Force Majeure Event lasts for more than sixty (60) consecutive days, either Party may terminate this Agreement, including all Sales Agreement(s).
15. Promotional Materials. Neither Party shall, during the Term or thereafter, issue any press release regarding this Agreement or use the other Party’s name in any advertising or promotional materials without the prior written consent of the other Party. Notwithstanding the foregoing, Recapped may use Client’s name and logo for its own marketing, advertising, and promotional purposes by naming Client as a client of Recapped on its website, customer list, pitch deck, and other client and investor-facing materials. In addition, Client agrees to: (a) act as a reference to potential clients of Recapped’s Software, including by participating in phone calls with potential clients; and (b) provide a quote regarding the Software for use on Recapped’s website for its promotional purposes.
16. U.S. Government Rights. Recapped provides the Software and Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: government technical data and software rights related to the Software and Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Recapped to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
17. Notices. Any email notice under this Agreement shall be deemed delivered upon being sent (as recorded on the device from which the sender sent the email), unless the sender receives an automated message that the email has not been delivered. Notices to Client shall be made to the email address associated with Client’s account for the Services, which Client may update at any time. Notices to Recapped must be made to firstname.lastname@example.org.
18. Survival. The provisions of Sections 1, 2(c)-(e), 3, 4(c), 5, 7, 8, 9, 11, 12, 13, 15, and 18 through and including 22 of these TOS shall survive termination of the Agreement.
19. Assignment. Neither Party may assign or transfer this Agreement or any of its rights hereunder (whether by operation of law or otherwise), or delegate any obligations hereunder, without the express written consent of the other Party. Notwithstanding anything to the contrary in this Agreement, a Party may assign this Agreement to any entity in connection with a reorganization, merger, consolidation, acquisition, or other transaction involving all or substantially all of the voting securities or assets of such Party, upon written notice to the other Party. Any assignment or transfer in violation of the foregoing will be null and void from the beginning. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
20. Electronic Communications. By using the Service, Client consents to receiving electronic communications (e.g., e-mail) from Recapped. These communications will include notices about the Authorized Users’ accounts and information concerning or related to the Services.
21. No Waiver. Recapped’s failure to enforce any right or provision of the Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by Recapped’s duly authorized representative. Except as expressly set forth in the Agreement, the exercise by either Party of any of its remedies under the Agreement will be without prejudice to its other remedies under the same or otherwise.
22. General. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. Both Parties agree that this Agreement, including all Sales Agreements between the Parties, is the complete and exclusive statement of the mutual understanding of the Parties, and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement, including but not limited to any non-disclosure agreement. Section titles in these TOS are for convenience only and have no legal or contractual effect.
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