These Recallium, Inc. (hereinafter “Recallium”) Terms of Service (collectively with any attachments, addenda, schedules, or exhibits referenced herein and any Licensing Agreement (as defined below) that reference these Terms of Service, and the Data Privacy Addendum attached hereto as Schedule 1 (the “DPA”), the "Agreement") apply to any Licensing Agreement (s) between Customer (as defined below) and Recallium (each a "Party" and collectively the "Parties") and is effective as of the Effective Date of the first Licensing Agreement between the Parties.
Definitions:
"Affiliate" means an entity that, directly or indirectly, owns or controls or is owned or controlled by, or is under common ownership or control with, a Party as of the Effective Date or at any time during the Term and for as long as such entity remains directly or indirectly owned or controlled by the Party. As used herein, "control" means the power to direct, directly or indirectly, the management or affairs of an entity, and "ownership" means the beneficial ownership of 50% or more of the voting equity securities or other equivalent voting interests of an entity; provided that Customer shall not be deemed an Affiliate of Recallium for purposes of any Licensing Agreement or these Terms of Service].
"Customer" means the customer identified on the Licensing Agreement who is Party to this Agreement.
"Customer Data" means any data (including aggregated or transformed versions thereof and analytical outputs, other than Usage Data), models, algorithms, analyses, transformation code, business logic or other content that is provided by, whether directly or indirectly from a third party, or created by Customer or any User (as defined below) using the Service, for integration, use, or other processing in or through the Service. Neither Recallium nor any of its subcontractors claims ownership of Customer Data.
“Customer Materials” means the specific documents and materials, including documents, specifications, software, hardware, systems, and technologies, that are provided or made available to Recallium or any of its subcontractors by or on behalf of the Customer in connection with this Agreement.
“Customer Personal Data” has the meaning given to it in the DPA.
"Data Connection Software" means software provided by Recallium for installation locally for Customer or a User to connect Customer Data to the Service.
“Data Incident” has the meaning given to it in the DPA.
“Data Protection Laws” has the meaning given to it in the DPA.
“Documentation" means any technical documentation for the Service made available in connection with the Service, including the technical documentation relevant to the Service, updated from time to time at Recallium’s sole discretion (provided that any update will not materially adversely affect any description of features, functionality, performance or security of the Service), and any specifications or other requirements for the Service agreed by the Parties in any Licensing Agreement.
"Intellectual Property Rights" means all rights, title, and interest in and to any and all intellectual property rights, including trade secret rights, patents, copyrights, service marks, trademarks, trade names, rights in trade dress and packaging, design rights, database rights, and moral rights, including any applications or registrations with respect to the foregoing, under the laws or regulations of any governmental, regulatory, or judicial authority.
"Licensing Agreement" means an ordering document specifying the Service and/or Professional Services (if applicable) to be provided hereunder that is entered into between Recallium and Customer, including any attachments, addenda, or exhibits thereto.
"Sample Materials" means any technology and materials provided or made available by Recallium to Customer for use with the Service, including sample code, software libraries, command line tools, data integration code, templates, and configuration files.
"Service" means Recallium’s proprietary software-as-a-service offering(s) set forth in a Licensing Agreement.
“Technology" means the Service, Documentation, Data Connection Software, Sample Materials, software, models, and application programming interfaces (APIs), provided or made available to Customer as a service in connection with this Agreement, and any improvements, modifications, derivative works, patches, upgrades, and updates thereto.
"Taxes" means any applicable sales, use, transaction, value added, goods and services tax, harmonized sales tax, withholding tax, excise or similar taxes, and any foreign, provincial, federal, state or local fees or charges (including but not limited to environmental or similar fees), duties, costs of compliance with export and import controls and regulations, and other governmental assessments , including any penalties and interest with respect thereto, imposed on, with respect to, or otherwise associated with any transaction hereunder.
"Third Party Content" means any data, services, applications, or materials, including any software or software-as-a-service, that interoperate with the Service and are provided by any third party which Recallium may, at Customer’s sole discretion, facilitate the use of in connection with the Service and subject to an independent agreement between Customer and such third party.
"Third Party Services" means third party services that Recallium may utilize in the provision of the Service as set forth in the Licensing Agreement (or as otherwise agreed by the Parties in writing).
Provision of Service.
Service Access. Recallium shall make available the Service to Customer and its Users, during the applicable Order Term (as defined below) solely for use by Customer and its Users in accordance with the terms and conditions of this Agreement and the Documentation for Customer’s internal business purposes, including to provide services to Customer’s clients, or as otherwise set forth in a Licensing Agreement.
Data Connection Software License. If applicable for use of the Service, Recallium grants to Customer during the applicable Order Term a non-exclusive, nontransferable (except as set forth herein), non-sublicenseable (except as expressly set forth herein), limited license to use the Data Connection Software for the sole purposes of using and connecting to the Service. Customer shall allow Recallium, or its subpossessors, to access the Data Connection Software remotely, as necessary, to provide the Service.
Sample Materials License. Recallium may make available the Sample Materials for use by Customer during the Order Term. If applicable, Recallium grants to Customer during the applicable Order Term a non-exclusive, nontransferable (except as set forth herein), non-sublicenseable (except as expressly set forth herein), limited license, to copy, modify, and use the Sample Materials solely to the extent necessary for Customer's and its Users’ use of the Service.
Usage Data. Recallium may collect and use metrics, analytics, statistics, or other data related to the usage of the Service in an aggregated and anonymized manner (provided that non-anonymized data may be contained in security logs used for purposes specifically noted herein and accessed only by Recallium’s or its subcontractor’s employees with a need to have access for security investigation purposes) (“collectively, “Usage Data”) (a) to provide and secure the Service for the benefit of Customer and (b) to analyze, maintain, support, and improve the Service (provided that in relation to (b), the data collected shall not include Customer Personal Data or Customer Data or Customer Materials).
Security. Recallium will implement and maintain, at its own cost and expense, and in accordance with Data Protection Laws and other international standards, reasonable and appropriate technical, organizational, and physical security measures designed to protect the privacy and security of Customer Data. In processing Customer Data Recallium shall take reasonable steps to ensure that relevant Recallium personnel are subject to appropriate supervision and binding confidentiality obligations. Recallium shall further ensure that its subcontractors who are responsible for processing Customer Data on behalf of Recallium similarly establish an Information Security Program ("ISP") that meets or exceeds the requirements of this Agreement and applicable Data Protection Laws. Recallium will make available to Customer upon written request (no more frequently than once per calendar year) such documentation. Recallium shall provide to Customer the above audit documentation relating to Recallium's operating practices and procedures to the extent relevant to the Service. Customer acknowledges that Recallium's documentation noted in this Section and other related information are Recallium's Confidential Information (as defined below) hereunder.
Service Levels and Support. During the applicable Order Term, Recallium will provide support services as specified in the applicable Licensing Agreement. If so specified, and subject to the payment of applicable fees set forth in the applicable Licensing Agreement, Recallium will provide Customer the service levels and support consistent with the support terms and service levels set forth in the Service Level Agreement and Support Policy attached hereto as Schedule 2. Any supplemental software code or related materials that Recallium provides to Customer as part of any support services are part of the Technology and are subject to the terms and conditions of this Agreement.
Professional Services. Recallium shall provide Customer with implementation, enablement, integration, configuration, and training with respect to Customer's use of the Service solely as specified in the applicable Licensing Agreement and subject to any fees thereunder ("Professional Services"). If the Licensing Agreement specifies no Professional Services, Recallium may, at its sole discretion (without an obligation to do so absent a separate agreement providing otherwise), provide Customer Professional Services. The performance of any Professional Services shall not affect ownership of the Technology and other materials provided by Recallium under this Agreement.
Customer Policies. Recallium shall, and shall cause its personnel and its subcontractors to, comply with all Customer Policies and procedures reasonably related to security or access, provided to Recallium in writing at least ten (10) days in advance and not unduly burdensome to Recallium, with respect to access or use of any Customer Data or Customer Materials, or facilities, software, hardware, technology, systems or environments. Recallium will be responsible for all acts and omissions of its personnel and subcontractors while on Customer’s or any of its Affiliates’, property or while accessing and using any Customer Data or Customer Materials, or Customer’s or its Affiliate’s facilities, software, hardware, technology, systems or environments.
Customer Use of Service.
Accounts. Customer may provision accounts to access the Service ("Accounts") for its (a) employees, (b) contractors, and (c) any other users (including Customer’s Affiliates) specified in a Licensing Agreement, for the purposes authorized hereunder (collectively, "Users"). Customer shall be responsible and/or liable for (i) administering Accounts; (ii) using industry standard security measures to protect Accounts (including without limitation using multi-factor authentication); (iii) any activity on Accounts and the monitoring of such activity on Accounts (only to the extent that such monitoring does not violate any other term of this Agreement or applicable law); and (iv) any breach or violation of this Agreement by any Users. Customer shall immediately de-activate any Account upon becoming aware of the compromise or unauthorized use thereof (and in such case promptly notify Recallium of such compromise or unauthorized use), or upon Recallium's reasonable request. If Customer does not use its own identity provider service, Recallium may, on a temporary and exceptional basis, directly provision Accounts. In such cases, Customer acknowledges and accepts that User authentication cannot be restricted to approved devices or hardware and Accounts can only be terminated manually, upon receipt of specific instructions from Customer.
Data Protection. The Parties shall comply with the DPA, attached hereto. Customer shall be solely responsible for the accuracy, content, and legality of Customer Data and shall ensure that any integration of Customer Data into the Service complies with applicable laws and regulations, including but not limited to data localization requirements. Customer is wholly responsible for the security and use of Customer Data under Customer’s control.
Acceptable Use.
Applicable Laws. Customer will not access and use the Service in a manner or for a purpose that violates applicable laws of the United States or other laws applicable in the jurisdiction in which Customer is located, in which any natural persons who can be identified (directly or indirectly) by reference to the Customer Data is located or in which Customer Data is stored, and it is solely Customer's responsibility to ensure such compliance (provided that the foregoing shall not affect Recallium’s indemnity obligations documented herein.
Export Controls. The Technology and Professional Services may be subject to trade control regulations of the United States, including without limitation the U.S. Export Administration Regulations administered by the Department of Commerce's Bureau of Industry and Security and embargo and sanctions regulations administered by the U.S. Department of Treasury's Office of Foreign Assets Control or other export control and sanctions laws, including those applicable in other jurisdictions (the "Trade Compliance Requirements”). The Service is controlled under 5D002.c.1, ENC. Customer may not use the Technology in violation of, or take any action that causes Recallium to violate, applicable Trade Compliance Requirements. Customer also represents that it is not subject to restrictions under any U.S. Government restricted end user lists and that it is not 50% or more, directly or indirectly, owned or controlled by any individuals or entities identified on such lists, and it will immediately notify Recallium if Customer becomes subject to any such restrictions. Customer may not (unless expressly agreed otherwise in a signed, written instrument, including in an applicable Licensing Agreement) use or access the Service to (1) perform any activities subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State, including without limitation ingesting ITAR-controlled data, and (2) ingest, access, or transmit Controlled Unclassified Information.
Use Cases. By using the Technology, Customer agrees to abide by all restrictions set out in the Licensing agreement.
Proprietary Rights.
Customer Data Ownership. As between the Parties, Customer owns all rights, title, and interest, including all Intellectual Property Rights, in and to Customer Data and Customer Materials and any modifications made thereto. Subject to this Agreement, Customer grants to Recallium a non-exclusive, worldwide, royalty-free right and license during the Term (as defined below) to process Customer Data solely to provide the Service and/or Professional Services. Customer further grants to Recallium a worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) and transferable right and license to use, distribute, disclose, and make and incorporate into the Technology any suggestions, enhancement request, recommendation, or other feedback provided by Customer relating to the Technology. Recallium shall not and any other subcontractors not to, (a) use any Customer Data or Customer Materials to train any artificial intelligence Models (as defined in the AIP Addendum attached as Schedule 4) or place any Customer Data or Customer Materials in any public large language model, in each case unless explicitly authorized by Customer in writing or (b) use any fine-tuned model created for Customer (or any data derived from any such fine-tuned model) to improve or create any other models, Technology, products or services for itself or for other customers or third parties (whether or not in an anonymized or aggregated form).
Recallium Ownership. As between the Parties, Recallium owns all rights, title, and interest, including all Intellectual Property Rights, in and to the Technology, and any other related documentation or materials provided by Recallium and any derivative works, modifications, or improvements of any of the foregoing (including without limitation all Intellectual Property Rights embodied in any of the foregoing). Except for the express rights granted herein, Recallium does not grant any other licenses or access, whether express or implied, or any ownership rights to any Technology, software, services, or Intellectual Property Rights.
Restrictions. Customer will not (and will not authorize any third party to): (a) gain or attempt to gain unauthorized access to the Service or infrastructure, or any element thereof, or circumvent or interfere with any authentication or security measures of the Service; (b) interfere with or disrupt the integrity or performance of the Service; (c) access or attempt to gain access to another customer's data; (d) adversely impact the ability of other customers to use the Service; (e) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs through the Service; (f) decompile, disassemble, scan, reverse engineer, or attempt to discover any source code or underlying processes, functionality or algorithms of any Technology (except to the extent that applicable law expressly prohibits such a reverse engineering restriction, and in such case only upon prior written notice to Recallium); (g) except as expressly authorized under these Terms of Service or a Licensing Agreement, provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use or allow others to use the Service for the benefit of any third party; (h) use the Service for any purpose that is not expressly permitted by this Agreement; (i) list or otherwise display or copy any code of any Technology, except for the Sample Materials to the extent necessary for Customer's use of the Service; (j) copy any Technology (or component thereof) or develop any improvement, modification, or derivative work thereof, except for the Sample Materials to the extent necessary for Customer's use of the Service; (k) include any portion of any Technology in any other service, equipment, or item; (l) perform penetration tests on the Service unless authorized by Recallium; (m) use or access any Technology for the sole purpose of designing, modifying, improving, or otherwise creating any service, environment, software, models, algorithms, products, program, or infrastructure, which directly competes with the Technology at such time in any material respect; (n) remove, obscure, or alter, or otherwise violate the terms of any copyright notice, trademarks, logos, and trade names and any other notices (including third party open source or similar licenses) or identifications that appear on or in any Technology and any associated media; (o) use the Technology to engage in or advance any fraud or misrepresentation (including but not limited to providing fraudulent or misleading information in response to the Licensing Agreement ); or (p) use or access the Service for the purposes of engaging in or supporting spamming activities or communications, or marketing activities or communications in violation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (15 U.S.C. § 7701 et seq.), the Telephone Consumer Protection Act (47 U.S.C. § 227), and all other applicable laws prohibiting spam or otherwise governing transmission of marketing materials and/or communications.
Independent Development. Subject to Customer’s confidentiality obligations herein and the restrictions in Section 6.3, and subject to any Intellectual Property rights of Recallium or its suppliers, nothing in these Terms of Service prohibits Customer from independently developing any environment, software, models, algorithms, products, program, infrastructure or services similar to or competitive with the Technology or any products or services of Recallium now or in the future.
Confidentiality. Each Party (the “Receiving Party”) shall keep strictly confidential all Confidential Information of the other Party (the “Disclosing Party"), shall not use such Confidential Information except for the purposes of this Agreement, and shall not disclose such Confidential Information to any third party other than disclosure on a need-to-know basis to the Receiving Party’s directors, employees, agents, attorneys, accountants, subcontractors, or other representatives who are each subject to obligations of confidentiality at least as restrictive as those herein (“Authorized Representatives"). The Receiving Party shall use at least the same degree of care as it uses to prevent disclosure of its own confidential information, but in no event less than reasonable care. The Receiving Party may, without violating the obligations of this Agreement, disclose Confidential Information to the extent required by a valid court or government order, provided that the Receiving Party: (a) to the extent legally permitted, provides the Disclosing Party with reasonable prior written notice of such disclosure and (b) uses reasonable efforts to limit disclosure and to obtain, or to assist the Disclosing Party in obtaining, confidential treatment or a protective order preventing or limiting the disclosure, while allowing the Disclosing Party to participate in the proceeding. “Confidential Information" means (i) in the case of Recallium, Technology (including any information relating thereto); (ii) in the case of Customer, Customer Data; (iii) any other information which by the nature of the information disclosed or the manner of its disclosure would be understood by a reasonable person to be confidential, in each case, in any form (including without limitation electronic or oral) and whether furnished before, on, or after the Effective Date, including , financial information, such as financial statements, budgets and forecasts, clearing arrangements, profit margins, commission rates, financing arrangements and overhead costs; trading information, strategies and methodologies, such as the identity of any of the specific financial instruments traded, position and dollar limitations, trading and risk management methods and policies, style of trading, amount of trades, trade development methods, profitability of trades and hedging and spread trading techniques; business plans and operations, such as personnel and salary data, information concerning the utilization of trading facilities, recruitment information and equipment utilization information; current or potential investments, investors, and/or clients; product plans, product roadmaps, marketing plans, techniques, strategies, ideas and contacts; proprietary programs and software, including computer programs in source or object code, algorithms and models and all related documentation and training materials; and (iv) any other information prepared or furnished to the Receiving Party by the Disclosing Party or prospective investors in connection with the provision or use of Products, Professional Services or the Service that is marked or identified as confidential, or which, under the circumstances of disclosure, a reasonable person would understand to be confidential; provided, however, that Confidential Information shall not include any information that (1) is or becomes part of the public domain through no act or omission of the Receiving Party or its Authorized Representatives; (2) is known to the Receiving Party at the earlier of the Effective Date or the time of disclosure by the Disclosing Party (as evidenced by written records) without an obligation to keep it confidential; (3) was rightfully disclosed to the Receiving Party prior to the Effective Date from another source without any breach of confidentiality by the third party discloser and without restriction on disclosure or use; or (4) the Receiving Party can document by written evidence that such information was independently developed without any use of or reference to Confidential Information. The Receiving Party shall be liable for any breaches of this Section by any person or entity to which the Receiving Party discloses Confidential Information. The Receiving Party’s obligations with respect to Confidential Information shall survive termination of this Agreement for five (5) years, provided that the Receiving Party’s obligations hereunder shall survive termination and continue in perpetuity, or as long as permitted by applicable law, with respect to any Confidential Information that is a trade secret under applicable law.
Fees and Payment; Taxes.
The Service is deemed delivered upon the provision of access to Customer or for Customer’s benefit. If there are fixed fees set forth in a Licensing Agreement, such fees will be invoiced and payable on an upfront basis, or as otherwise set forth in the Licensing Agreement. Any usage-based fees set forth in a Licensing Agreement, including if payable in excess of any applicable included usage specified in a Licensing Agreement, will be calculated in accordance with the usage rates set forth in the Licensing Agreement (as applicable) and invoiced and payable quarterly in arrears, or as otherwise set forth in a Licensing Agreement. All payments shall be made via wire transfer to an account designated by Recallium in the currency set forth on the corresponding invoice (unless specifically provided for otherwise in a Licensing Agreement), or any other payment method agreed upon by the Parties and as set forth on the corresponding invoice, within thirty (30) days after the date of issuance of Recallium’s invoice. Any late payments shall be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount of interest allowed by applicable law. Unless otherwise stated in a Licensing Agreement, fees are exclusive of applicable Taxes. Customer shall be responsible for all Taxes arising under this Agreement (except taxes on or measured by the net income of Recallium) so that after payment of such Taxes, the amount Recallium receives is not less than the fees set forth in a Licensing Agreement. In the event a double taxation treaty applies, which provides a zero or reduced withholding tax rate, Customer agrees (a) not to withhold taxes in case of a zero withholding tax rate or (b) to withhold at the reduced tax rate in accordance with the double taxation treaty.
Term and Termination; Suspension.
Term. Unless specified otherwise in the Licensing Agreement, this Agreement is effective as of the Effective Date and shall continue in effect for six (6) months from the date of expiration of the last to expire Licensing Agreement, unless otherwise terminated as provided herein (the "Term"). The term of each Licensing Agreement shall continue for the duration set forth in the Licensing Agreement (the “Order Term”), unless otherwise terminated as provided herein.
Termination for Cause. Without limiting either Party’s other rights, either Party may terminate this Agreement and/or any Licensing Agreement(s) for cause (a) in the event of any material breach by the other Party of any provision of this Agreement of a Licensing Agreement and failure to remedy the breach (and provide reasonable written notice of such remedy to the nonbreaching Party) within thirty (30) days following written notice of such breach from the non-breaching Party; (c) upon dissolution of the other Party; or (c) if the other Party seeks protection under any bankruptcy, receivership, or similar proceeding or such proceeding is instituted against that Party and not dismissed within ninety (90) days. Except where an exclusive remedy is specified in this Agreement, the exercise by either Party of the right to terminate under this provision shall be without prejudice to any other remedies it may have under this Agreement or by law. In the event of termination of this Agreement by Customer for cause pursuant to Section 9, Recallium shall provide a pro-rated refund of any fees pre-paid for the Professional Services and Service after the effective date of termination.
Effect of Termination. Upon any termination or expiration of this Agreement, except as specifically set forth below, all of Customer’s rights, access, and licenses granted to Technology shall immediately cease, and Customer shall promptly return or destroy all Data Connection Software, Sample Materials, Documentation, and all other Recallium Confidential Information and, upon written request, certify its compliance with the foregoing to Recallium in writing within ten (10) days of such request. Upon termination or expiration of this Agreement, if requested by Customer, Customer shall, subject to the terms of this Agreement, have access to the Service for thirty (30) days solely for the purpose of retrieving Customer Data. Upon any termination or expiration of this Agreement, Recallium shall, and shall cause its other subcontractors to, thereafter cease use of and delete or otherwise render inaccessible all Customer Data, Customer Materials and any fine-tuned models developed under the Agreement and upon request will provide written certification by an officer that all such Customer Data, Customer Materials and fine-tuned models, as applicable, have been deleted. Notwithstanding the foregoing, subject to Section 6, Recallium shall retain, subject to the other terms of this Agreement, and solely for security purposes, usage information and metadata related to the security of the Service, excluding Customer Data (except for security-related information such as IP addresses, usernames, log-in attempts, and search queries), for a period of two (2) years following the last event logged. No termination or expiration of this Agreement shall limit or affect rights or obligations that accrued prior to the effective date of termination or expiration (including without limitation payment obligations). Sections 1, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, and 16 shall survive any termination or expiration of this Agreement.
Suspension of Service. If Recallium reasonably determines or suspects that: (a) Customer's use of the Service violates applicable law (including but not limited to the Trade Compliance Requirements) or otherwise violates a material term of this Agreement (including but not limited to Section 3 (Data Protection), Section 5 (Acceptable Use), Section 6 (Restrictions), Section 7 (Confidentiality), Section 8 (Fees and Payment), and Section 12 (Customer Warranty)), or (b) Customer's use of the Service poses a risk of material harm to Recallium or their respective other customers, Recallium reserves the right to disable or suspend Customer's access to all or any part of the Technology, subject to Recallium providing Customer notice of such suspension concurrent or prior to such suspension. Recallium shall promptly resume provision of the Service upon Customer’s cure or other resolution of the issue.
Indemnification.
Recallium Indemnification. Recallium shall defend Customer and its Users against any claim of infringement or violation of any Intellectual Property Rights asserted against Customer by a third party based upon (i) Customer's use of the Service or Technology in accordance with the terms of this Agreement, (ii) breach of Recallium’s obligations under the DPA, (iii) breach of Recallium’s obligations under Section 6.a (Customer Data Ownership), (iv) breach of Recallium’s obligations under Section 7 (Confidentiality), or (v) the gross negligence or willful misconduct of Recallium, or any of their Affiliates or its or their employees, contractors, subcontractors or agents, and indemnify and hold harmless Customer from and against reasonable costs, attorneys' fees, and damages, if any, finally awarded against Customer pursuant to a non-appealable (or unappealed) order by a tribunal of competent jurisdiction in such claim or settlement entered into by Recallium. If Customer's use of any of the Technology or any portion of the Service is, or in Recallium’s opinion is likely to be, enjoined by a court of competent jurisdiction due to the type of infringement specified above, or if required by settlement approved by Recallium in writing, Recallium may, in its sole discretion and at its expense: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the affected Technology; or (c) if Recallium reasonably determines that options (a) and (b) are commercially impracticable, Recallium or Customer may terminate this Agreement or the affected Licensing Agreement and refund to Customer a pro-rated portion of the fees paid hereunder for the terminated Service that reflects the remaining portion of the Order Terms of any Licensing Agreement in effect at the time of termination. The foregoing indemnification obligations of Recallium shall not apply: (1) if Technology is modified by or at the direction of Customer or Users, but only to the extent the alleged infringement would not have occurred but for such modification; (2) if the Technology is combined with non-Recallium products not authorized by Recallium, but only to the extent the alleged infringement would not have occurred but for such combination; (3) to any unauthorized use of Technology, any use that is not consistent with the Documentation, any use that violates Section 6 (Acceptable Use), or use during any period of suspension (as set forth in Section 9.d); (4) to any Customer Data or Customer Materials; or (5) to any non-Recallium products or services.
Customer Indemnification. Customer shall defend Recallium against any third party claim asserted against Recallium arising from or relating to (a) Customer’s violation of applicable law, (b) Customer Data or Customer Materials (provided that Customer shall not be responsible to the extent any such claim arises from or relates to any Data Incident directly caused, or any breach of this Agreement (including the DPA), by Recallium or any of their Affiliates or any of its or their contractors, subcontractors, employees or agents, (c) Customer's breach of Section 5 (Acceptable Use), (d) Customer's breach of Section 6.c (Restrictions), (e) any Customer-offered product or service (except if such claim is primarily attributable to the Technology or Service as offered by Recallium), or (f) the gross negligence or willful misconduct of Customer, and indemnify and hold harmless Recallium from and against related costs, attorneys' fees, and damages, if any, finally awarded against Recallium pursuant to a non-appealable (or unsupportappealed) order by a tribunal of competent jurisdiction in such claim or settlement entered into by Customer.
Indemnification Procedure. The obligations of the indemnifying Party shall be conditioned upon the indemnified Party providing the indemnifying Party with: (a) prompt written notice of any claim, suit, or demand of which it becomes aware; (b) the right to assume the exclusive defense and control of any matter that is subject to indemnification (provided that the indemnifying Party will not settle any claim without the indemnified Party’s prior written consent, such consent not to be unreasonably withheld); and (c) cooperation with any reasonable requests assisting the indemnifying Party’s defense and settlement (at the indemnifying Party’s expense). This Section sets forth each Party’s sole liability and obligation and the sole and exclusive remedy with respect to any claim of Intellectual Property Rights infringement.
Warranty and Disclaimer.
Warranty. Recallium represents and warrants that during the applicable Order Term, (a) the Service will be free from material defects, viruses and other malware and will be provided and will perform substantially in accordance with the applicable Documentation and (b) the Professional Services will be provided in a professional and workmanlike manner in accordance with all applicable laws, rules, regulations and industry standards. In the event of a breach of an above warranty, Customer may give Recallium written notice of termination of this Agreement or the applicable Licensing Agreement, which termination will be effective thirty (30) days after Recallium’s receipt of the notice, unless Recallium is able to remedy the breach prior to the effective date of termination. This warranty shall not apply to the extent such breach is caused by Customer Data, Customer Materials or misuse or unauthorized modification of the Service (including but not limited to Customer’s violation of Section 5 (Acceptable Use)) or any Customer-selected hardware used in connection with the Service. In the event of termination of this Agreement pursuant to Customer’s exercise of its right under this Section, Customer shall be entitled to receive from Recallium, as its sole and exclusive remedy, a pro-rated refund of any fees pre-paid for the Services after the effective date of termination.
Disclaimer. NO AMOUNTS PAID HEREUNDER ARE REFUNDABLE OR OFFSETTABLE EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE TECHNOLOGY AND PROFESSIONAL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY OTHER WARRANTIES OF ANY KIND, AND RECALLIUM AND ITS SUPPLIERS AND SERVICE PROVIDERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, RELATING TO THE TECHNOLOGY AND PROFESSIONAL SERVICES PROVIDED HEREUNDER OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING LIMITATION, RECALLIUM DOES NOT WARRANT THAT THE TECHNOLOGY AND PROFESSIONAL SERVICES WILL MEET CUSTOMER REQUIREMENTS OR GUARANTEE ANY RESULTS, OUTCOMES, OR CONCLUSIONS OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. RECALLIUM SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACTIONS TAKEN OR CONCLUSIONS DRAWN BY CUSTOMER BASED ON CUSTOMER'S USE OF THE SERVICE. RECALLIUM IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY SERVICES (INCLUDING WITHOUT LIMITATION UPTIME GUARANTEES, OUTAGES, OR FAILURES), CUSTOMER DATA, CUSTOMER MATERIALS, OR ANY THIRD-PARTY CONTENT. RECALLIUM DOES NOT CONTROL THE TRANSFER OF INFORMATION OR CUSTOMER DATA OVER COMMUNICATIONS FACILITIES, THE INTERNET, OR THIRD-PARTY SERVICES, AND THE SERVICE MAY BE SUBJECT TO DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. RECALLIUM IS NOT RESPONSIBLE FOR ANY DELAYS, FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Customer Warranty. Customer warrants that (a) Customer has provided all necessary notifications and obtained all necessary consents, authorizations, approvals, and/or agreements as required by any applicable laws or policies, and has informed Recallium of any obligations applicable to Recallium’s processing of Customer Data, in order to enable Recallium to process Customer Data, including personal data, according to the scope, purpose, and instructions specified by Customer and that Customer will not direct the processing of Customer Data by Recallium in violation of any laws or regulations (including localization requirements) or rights of third parties; and (b) it will not use the Service for any unauthorized or illegal purposes. In the event of a breach of an above warranty, Recallium may give Customer written notice of termination of this Agreement or the applicable Licensing Agreement, which termination will be effective thirty (30) days after Customer’s receipt of the notice, unless Recallium is able to remedy the breach prior to the effective date of termination. This warranty shall not apply to the extent such breach is caused by the Technology, Service, or misuse or unauthorized modification of any Customer Data or Customer Materials (including but not limited to violation of Section 6.1 (Customer Data Ownership) or the DPA or any Data Incident.
Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR THE PARTIES’ OBLIGATIONS SET FORTH IN SECTION 7 (CONFIDENTIALITY) OR DAMAGES ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY OR ANY OF ITS SUBCONTRACTORS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY (A) COST OF PROCUREMENT OF ANY SUBSTITUTE PRODUCTS OR SERVICES (EXCEPT FOR RECALLIUM’S OBLIGATIONS PURSUANT TO SECTION 10.A HEREIN), OR COST OF REPLACEMENT OF ANY CUSTOMER DATA, (B) ECONOMIC LOSSES, EXPECTED OR LOST PROFITS, REVENUE, OR ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF CONTRACTS, LOSS OF OR DAMAGE TO GOODWILL OR REPUTATION, AND/OR (C) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE, WHETHER ARISING OUT OF PERFORMANCE OR BREACH OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE TECHNOLOGY, EVEN IF THE PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE PARTIES AGREE THAT COSTS OF NOTICE OF A DATA INCIDENT AND LEGALLY REQUIRED CREDIT PROTECTION SERVICES IN CONNECTION WITH A DATA INCIDENT SHALL BE DEEMED DIRECT DAMAGES. EXCEPT FOR THE PARTIES’ OBLIGATIONS SET FORTH IN SECTIONS 6 (PROPRIETARY RIGHTS), 7 (CONFIDENTIALITY), AND 10.A(I), 10.A(III), 10.A(V), AND 10.B OF THIS AGREEMENT, DAMAGES ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY OR ANY OR ITS SUBCONTRACTORS, AND CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY AGREES THAT THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS OF ANY KIND SHALL NOT EXCEED ALL FEES PAID OR PAYABLE TO RECALLIUM BY CUSTOMER UNDER THE APPLICABLE LICENSING AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM FOR THE SERVICE OR PROFESSIONAL SERVICES THAT GAVE RISE TO SUCH CLAIM AND THAT SUCH REMEDY IS FAIR AND ADEQUATE. NOTWITHSTANDING THE FOREGOING SENTENCE, IF NO FEES ARE PAYABLE BY CUSTOMER UNDER AN APPLICABLE LICENSING AGREEMENT DURING SUCH APPLICABLE ORDER TERM, EXCEPT FOR BREACH OF THE PARTIES’ OBLIGATIONS SET FORTH IN SECTIONS 6 (PROPRIETARY RIGHTS), 7 (CONFIDENTIALITY) AND 10.A(I), 10.A(III) 10.A(V), AND 10.B OF THIS AGREEMENT, DAMAGES ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY OR ANY OF ITS SUBCONTRACTORS, AND CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY AGREES THAT THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS OF ANY KIND ARISING OUT OF SUCH LICENSING AGREEMENT SHALL NOT EXCEED ONE HUNDRED THOUSAND DOLLARS (USD 100,000), AND THAT SUCH REMEDY IS FAIR AND ADEQUATE. THE LIMITATIONS SET FORTH IN THIS SECTION 13 SHALL APPLY REGARDLESS OF WHETHER AN ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
NOTWITHSTANDING THE FOREGOING (EXCEPT FOR DAMAGES ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY OR ANY SUBCONTRACTORS), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY AGREES THAT THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY FOR (A) BREACH OF THE PARTIES’ OBLIGATIONS SET FORTH IN SECTIONS 7 (CONFIDENTIALITY) OR THE DPA, (B) OF CUSTOMER AND ITS AFFILIATES TO RECALLIUM AND ITS AFFILIATES FOR ALL CLAIMS OF ANY KIND RELATING TO DAMAGES ARISING FROM ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.A ARISING FROM ANY OF THE FOREGOING OR FROM VIOLATION OF DATA PROTECTION LAWS, AND (C) OF RECALLIUM AND ITS AFFILIATES TO CUSTOMER AND ITS AFFILIATES FOR ALL CLAIMS OF ANY KIND RELATING TO DAMAGES ARISING FROM ITS INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 10.a(ii), AND 10.a(iv), SHALL NOT, UNDER ANY CIRCUMSTANCES WHATSOEVER, EXCEED $5,000,000 USD, AND THAT SUCH REMEDY IS FAIR AND ADEQUATE.Dispute Resolution. Any dispute, controversy, or claim arising from or relating to this Agreement, including arbitrability, that cannot be resolved following good faith discussions within sixty (60) days after notice of a dispute shall be finally settled by arbitration. If Customer is located in the Americas, then the governing law shall be the substantive laws of the State of New York, without regard to conflicts of law provisions thereof, and arbitration shall be administered in New York, New York, United States under the Comprehensive Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. ("JAMS") and the Federal Rules of Evidence (notwithstanding JAMS Rule 22(d) or any other JAMS Rule to the contrary). If Customer is located outside of the Americas, then the governing law shall be the substantive laws of England and Wales, without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on Contracts for the International Sale of Goods, and arbitration shall be administered in London, United Kingdom under the Rules of Arbitration of the International Chamber of Commerce. Notwithstanding the foregoing, each Party shall have the right to institute an action at any time in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that (a) the Party instituting the action shall seek an order to file the action under seal (or at a minimum do so for any filings containing Confidential Information or trade secrets) in order to limit disclosure as provided in Section 7 of this Agreement; and (b) a permanent injunction and damages shall only be awarded by the arbitrator(s).
Right to Modify. Recallium reserves the right to modify, at any time, any or all support services, provisions, or obligations which are a part of this Agreement by providing Customer written notice thirty (30) days prior to the effective date of such change. Customer shall then have thirty (30) days in which to notify Recallium in writing of any objections therein to any modifications with proposed remedy. If no such notification is received by Recallium, the modified services shall become effective as announced.
Miscellaneous. Recallium shall provide the Service and Professional Services consistent with all applicable laws, rules and regulations (including but not limited to those regarding data protection and international transfers of personal data), subject to Customer’s compliance with this Agreement. Except with the other Party’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), neither this Agreement nor the access or licenses granted hereunder may be assigned, transferred, or sublicensed by either Party including without limitation pursuant to a sale of all or substantially all of the assets of such Party; and any attempt to assign this Agreement or any Licensing Agreement in violation of this Section shall be void. Each Party must provide written notice to the other Party prior to a direct or indirect change of control of such Party (whether by a merger involving such Party where such Party is not the surviving entity, or otherwise (collectively, a “Change of Control”)), and the other Party may terminate this Agreement in the event of a Change of Control by providing written notice within thirty (30) days of receipt of such notice. Recallium may use subcontractor personnel to deliver the Service, and Professional Services and/or support services under this Agreement, subject to the DPA, provided that Recallium shall remain fully responsible for such subcontractor personnel. Any notice required or permitted hereunder shall be in writing to the parties at the addresses set forth in the applicable Licensing Agreement. If any provision of this Agreement shall be 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 shall otherwise remain in full force and effect and be enforceable. Any and all modifications, waivers, or amendments must be made by mutual agreement and shall be effective only if made in writing and signed by each Party. No waiver of any breach shall be deemed a waiver of any subsequent breach. Except for the obligation to pay money, neither Party will be liable for any failure or delay under this Agreement due to any cause beyond its reasonable control, including without limitation acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, failure of the Internet, telecommunications, or hosting service provider, computer attacks, or malicious acts; provided that the delayed Party: (a) gives the other Party prompt notice of such cause; and (b) uses commercially reasonable efforts promptly to correct such failure or delay in performance, and if the delayed Party’s performance is affected for more than thirty (30) days, the other Party shall have the right to terminate this Agreement or any Licensing Agreement upon written notice to the delayed Party. There are no third-party beneficiaries under this Agreement, whether express or implied. For the avoidance of doubt, nothing in this Agreement shall be construed to create a joint venture, employment, partnership, strategic alliance, formal alliance, or strategic partnership relationship between the Parties. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and terminates all previous written and oral agreements and communications relating to the subject matter of this Agreement. Any terms and conditions attached to any purchase order or supplier or invoicing portal of Customer or equivalent will not be binding on Recallium, Customer shall have no right to audit or inspect Recallium unless and only to the extent required by applicable law. In the event of a conflict between these Terms of Service, the DPA, any Licensing Agreement, any other schedule or exhibit to this Agreement and any additional terms presented to any end user of the Service, the terms of the DPA will prevail, followed by the terms of such Licensing Agreement, then any other schedule or exhibit to this Agreement, then these Terms of Service, then any such additional terms presented to any end user.