Please read these Terms of Service (the “Terms”) carefully as they form a contract between you and Ready Set Recover, LLC, a New York limited liability company (“RSR”; “us”; “our”) that governs your access and use of our website, our application, if any, our services, and other software that may be downloaded to, or accessed by, any mobile or computing device you own, control, or use in connection with our services (collectively, the “Services”).
By using, accessing, or downloading our Services, you are agreeing to these Terms.
You may not use, access, or download any Services unless, and by accessing the Services you represent and warrant that, you (1) if an individual, are at least 18 years of age, and (2) accept and agree to be bound by the provisions of this Agreement.
As used in this Agreement, unless otherwise expressly specified therein:
“Content” means the audio and visual information, documents, software, products, services, and other information contained within, or made available to you in the course of using, the Services.
“Customer Data” means any data, information or material provided, submitted, or made available by you to the Services in the course of using the Services, including, but not limited to, your email address and password that you use to create your account.
“Intellectual Property Rights” means rights in and to inventions (whether or not patentable), patent applications, patents, design rights, rights in and to software code and other works of authorship including copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, trade secret rights, and all other intellectual property rights and forms of protection of a similar nature anywhere in the world.
“RSR Technology” means all of RSR’s proprietary technology (including software, hardware, products, processes, algorithms, user and programming interfaces, know-how, techniques, designs and other tangible or intangible technical material or information), made available to you or otherwise used by RSR in providing the Services.
“Party” or “Parties” mean(s) either RSR or you, or both, as appropriate.
“User(s)” means your employees, representatives, consultants, contractors or agents, if any, who are authorized to use the Services.
2. Your Responsibilities and Usage Restrictions.
2.1. Responsibilities and Restrictions. You are solely responsible for your actions and the actions of your Users (and any of your other employees or agents) while using the Services and the contents of any Customer Data and other information or materials that may be stored or transmitted through your use of the Services. You and your Users will not, directly or indirectly:
(a) violate any material local, state, national, and international laws and regulations applicable to your use of the Services, including the laws and regulations of any country;
(b) upload or distribute in any way files that contain viruses, corrupted files, or any other software code that may damage the operation of the Services or any other computers or facilities;
(c) interfere with or disrupt networks or facilities used in providing, or that are connected to, the Services;
(d) transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability;
(e) interfere with any other customer’s use and enjoyment of the Services or any another person or entity’s use and enjoyment of services provided by RSR or any third party;
(f) upload any content or Customer Data that is libelous, defamatory, obscene, pornographic, abusive, or threatening; racially, ethnically or otherwise objectionable or offensive;
(g) violate any material and applicable regulations, policies and procedures of networks connected to the Services;
(h) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or other underlying RSR Technology;
(i) modify, copy, reproduce, license, display to third parties, translate, or create derivative works based on (i) the Services or (ii) any RSR Technology;
(j) rent, lease, distribute, sell, resell, assign, or otherwise purport to transfer rights to the Services or any RSR Technology;
(k) use the Services or any RSR Technology for the benefit of any third party;
(l) remove, alter, obscure, supplement, or otherwise change any proprietary notices, trademarks, warranties, or disclaimers from the Services or any RSR Technology;
(m) create any link to the Services or frame or mirror any Content contained on, or accessible from, the Services, without RSR’s prior written consent;
(n) remove, disable, circumvent, or otherwise create or implement any workaround to rights management or security features in or protecting the Services;
(o) install a copy of the Services on a device that you do not own or control, to the extent that you use our app, if any;
(p) assert, authorize, assist, or encourage any third party to assert, against RSR or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any RSR Technology you have used;
(q) use the Services in connection with medical devices or other situations in which the failure of the Services could lead to death or personal injury; or
(r) use RSR Technology in any manner or for any other purpose other than as expressly permitted by this Agreement.
2.2. Your Acknowledgements. You acknowledge that the laws and regulations governing the use of the Services may change from time to time. You acknowledge and agree that RSR neither endorses the contents of any of its customers’ communications, nor assumes any responsibility for the time, place, manner, or contents of any such communications or Customer Data. You further acknowledge and agree that RSR has the right, but not the obligation, to implement mechanisms to screen, monitor, modify, and remove any Customer Data or other content posted or stored on the Services or transmitted through the Services, at any time, in RSR’s sole and absolute discretion, without notice. You further acknowledge and agree that RSR has the right to disclose your Customer Data if required to do so by law or in a good faith belief that such disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; or (c) protect the rights, property, or personal safety of RSR, its customers, and/or the public.
2.3. Others’ Sensitive Personal Information. You are prohibited from uploading any other person’s “sensitive” personally identifiable information to the Services, which may include information about any another person that may relate to such person’s health or medical conditions, Protected Health Information (as defined in 45 CFR 160.103), social security number or taxpayer identification number, driver’s license number, information concerning political opinions, criminal charges or convictions, religious or philosophical beliefs, or racial or ethnic origin (“Sensitive Personal Information”). If you upload any other person’s Sensitive Personal Information to the Services, your account and access to the Services may be terminated immediately. Notwithstanding the foregoing, RSR is not responsible for any Sensitive Personal Information uploaded to the Services and is under no obligation to ensure that Sensitive Personal Information is not uploaded to the Services. You are prohibited from uploading any other person’s image, name or likeness unless you have first obtained that person’s written, express permission.
2.4. Third-Party Platforms. You may be permitted, through the functionality of the Services, to access the Services through a third-party platform or to link its Services account with its third-party platform account (each such platform, a “Third-Party Platform”). If you access the Services through a Third-Party Platform, you understand and agree that information related to you maintained by or associated with the Third-Party Platform (“Third-Party Platform Information”) may be transferred or made available to RSR, and information associated with you in your RSR account may be transferred or made available to the Third-Party Platform. You hereby consent (1) to all such transfers; and (2) to RSR using Third-Party Platform Information in connection with its provision of the Services. RSR has no responsibility or liability for Third-Party Platforms. RSR does not guarantee the accuracy, usefulness, safety, completeness, reliability, availability or timeliness of, or relating to, any Third-Party Platforms.
2.5 Other Service Providers. You acknowledge that this Agreement is entered into by and between us, as licensor and provider of the Services, and you and not with any other associated service provider or the third party from whom you are downloading any of the Services (each, a “Service Provider”). You must also comply with the usage rules established by any Service Providers that apply to your device (the “Usage Rules”). For example, you may be required to accept and abide by the terms and conditions of an app store (e.g., Apple, Inc.’s App Store or Google, Inc.’s Google Play Store) from which you download the Services, if applicable. It is your responsibility to determine what Usage Rules apply to your use of the Services, as they may be applicable to you depending on your device and any Service Provider. RSR has no responsibility or liability for Service Providers. RSR does not guarantee the accuracy, usefulness, safety, completeness, reliability, availability or timeliness of, or relating to, any Service Providers.
2.6. Your Account. To obtain access to certain Services, you may be required to obtain an account by completing a registration form and designating a user ID and password. Until you obtain an account, your access to the Services may be limited to the areas of the Services, if any, that RSR makes available to the general public. When registering with RSR you will: (a) provide true, accurate, current and complete information about yourself as requested by the registration form, and (b) maintain and promptly update such information to keep it true, accurate, current and complete. Only you may use your RSR account, except that if you are an entity, you may permit your employees to use your RSR account solely for your benefit. You will keep your account and passwords confidential and not authorize any third party to access or use the Services on your behalf, unless RSR provides an approved mechanism for such use. If an organization provided you with your account (e.g., an employer), this organization has rights to your account and may: (i) manage your account (including suspending or canceling it); (ii) reset your password; (iii) view your usage and profile data; and (iv) manage the Customer Data in your account. You will promptly contact RSR if you suspect any misuse of your account or any security breach in the Services has occurred. You are responsible for all activities that take place with your account. RSR will not be liable for any loss or damage arising from any unauthorized use of your account.
2.7. Resources. You are responsible for obtaining and maintaining all computer hardware, software, communications equipment, facilities and equipment needed to access the Services, and for paying all third-party access charges (e.g., charges of Internet or telecommunications service providers) incurred in connection with using the Services.
2.8. Deleting Customer Data. RSR may, without prior notice, deactivate or delete your account and any Customer Data at any time and for any reason. Cause for deactivation may include, without limitation: (a) breaches or violations of this Agreement, (b) requests by law enforcement or other government agencies, (c) a request by another customer whose Customer Data is accessed or accessible by you, (d) unexpected technical or security issues or problems, and (e) extended periods (e.g., more than six months) of inactivity. Further, you agree that all terminations will be made in our sole discretion and that we will not be liable to you or any third-party for deactivation of an account or deletion of Customer Data. We recommend that, from time to time, you take steps to preserve your Customer Data separately from our site so that you will have an archival copy.
3. Grant of License.
3.1. Terms of License. Subject to the terms and conditions of this Agreement, RSR grants to you a non-transferable, non-exclusive, revocable license use the Services according to the terms and conditions set forth in this Agreement and, if applicable, to install one copy of the RSR application, on your device and (collectively, the “License”). The Services are licensed, not sold, to you. Except as expressly granted by this Agreement or otherwise by RSR in writing, you acquire no right, title or license in RSR or any RSR Technology, Content, data, software, application or materials accessed from or incorporated in the Services. The Services are for your personal and non-commercial use only.
3.2. Updates. This Agreement does not give you any rights to any updates or upgrades to the Services or to any maintenance releases, patches, fixes, extensions or enhancements (collectively, “Updates”) to the Services or its suppliers or licensors at any time in the future. Except as required under applicable law, this License does not entitle you to receive any maintenance or support services with respect to the Services. RSR may provide Updates and/or support. If provided, Updates may be delivered automatically or you may be notified when a new Update is ready to be installed or is available for download. You authorize RSR to deliver automatically any Update if we believe it is necessary to provide for the continued functionality of the Services or for any reasonable business purposes. Your use of the Updates will be governed by this Agreement unless you are asked to agree to new or additional terms at the time of download or installation. You also agree that you may have to enter into a renewed version of this Agreement if you want to download, install or use a new or modified version of the Services.
4. Fees and Payment.
4.1. Payment. You will pay the fees applicable for the Services (the “Fees”) as quoted to you on the site or platform when you purchase the Services. RSR may calculate and collect taxes payable by you based on the billing information you provide at the time of purchase. You are responsible for, and will pay, all charges related to using the purchased Services (e.g., data charges and currency exchange settlements). You agree to provide complete and accurate billing and contact information in connection with your purchase of the Services.
4.2. Refund Policy. All transactions between you and RSR are final. RSR does not issue refunds for transactions or Services that have been paid for by you, except as otherwise provided or agreed between the parties; provided, however, that RSR will refund the first payment associated with your account (which shall include, without limitation, a payment made by another person on your behalf) if you are not satisfied with the Services and if you contact RSR at [email protected] within 3 months of RSR’s receipt of such first payment. Any such refund will be sent to the credit card that made such first payment.
4.3. Third-Party Payment Processors. Payments under this Agreement may be made via our authorized third-party payment processors (each, a “Payment Processor”), such as Stripe. By using the Services, you are authorizing the applicable Payment Processor to charge the account provided by you for the amounts owed and payable under this Agreement. You remain responsible for any uncollected amounts. The Payment Processor may charge you certain fees for some payment methods, such as foreign transaction fees or other fees relating to the processing of your payment, and you are responsible for the payment of any such additional fees and for complying with the Payment Processor’s service agreement.
5. Term and Termination.
5.1. Term. This Agreement will remain in effect so long as you continue to access or use the Services or until terminated in accordance with the provisions of this Agreement. RSR’s grant of the License to you is effective for an indefinite period of time, until RSR terminates it. Your rights under the License will terminate automatically without notice to you if you fail to comply with any of the provisions of this Agreement. RSR reserves the right to suspend, discontinue, enhance, update or otherwise modify the Services or their availability to you, at any time and for any reason, in RSR’s sole discretion, without notice.
5.2. Effect of Termination. Section 2 (Your Responsibilities and Usage Restrictions), Section 4 (Fees and Payment), Section 5 (Term and Termination), Section 6 (Proprietary Rights), Section 7 (Confidentiality and Privacy), Section 8 (Representations, Warranties, and Disclaimers), Section 9 (No Medical Advice), Section 10 (Indemnification), Section 11 (Limitation of Liability), Section 12 (Resolving Disputes), Section 13 (Copyright Complaints and Content Removal Policy), and Section 14 (General) will survive any termination or expiration of this Agreement. In no event will any termination or expiration of this Agreement relieve you of any obligations or liability accrued prior to termination including, without limitation, the obligation to pay any Fees payable to RSR.
5.3. Post-Termination Requirements. Upon termination of the License and/or this Agreement, you will cease all use of the Services. You understand that if your account is suspended or terminated, you may no longer have access to the Content and/or Customer Data that is stored with the Services. For clarity, except as expressly set forth in this Agreement, RSR shall not be required to store or delete any Customer Data.
6. Proprietary Rights.
6.1. Intellectual Property Ownership. RSR (and its licensors, where applicable) will exclusively own all right, title and interest, including all related Intellectual Property Rights, in and to the Services, the RSR Technology, and any modifications thereto or derivative works thereof. Further, RSR will exclusively own any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any third party relating to the Services or RSR Technology (the “Feedback”). You hereby grant, assign, and agree to assign, all right, title, and interest, including all related Intellectual Property Rights, in and to the Feedback and any modifications to, or derivative works of, the Services and the RSR Technology. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, the RSR Technology or the Intellectual Property Rights owned by RSR or its licensors, where applicable. The RSR name, the RSR logo, and the product names and domain names associated with the Services are trademarks of RSR or third parties, and no right or license is granted to use them. Other trademarks, logos, and trade names that may appear on the Services are the property of their respective owners. The Services, the RSR Technology and the Intellectual Property Rights that we use to provide the Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. RSR reserves to itself all rights in and to the Services and RSR Technology not expressly granted to you in accordance with this Agreement.
6.2. Reservation of Rights. Except for the assignment of Feedback to RSR under Section 6.1 above, each Party shall continue to own all rights, title and interest in and to its intellectual property, know-how, trade secrets, software, trademarks, and all other intellectual property, subject only to the license rights expressly granted herein.
6.3. Customer Data. You will retain all ownership of Customer Data that you submit to the Services in the course of this Agreement. You, not RSR, have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use all Customer Data. You will ensure that you and RSR have the right to use Customer Data as contemplated by this Agreement, and you hereby grant, and agree to grant, RSR the right to use all Customer Data for the purposes set forth in this Agreement. You grant to RSR an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide license, with the right to sublicense, use, reproduce, publish, distribute, perform, share, anonymize, and create derivative works from the Customer Data.
7. Confidentiality and Privacy.
7.1. Confidentiality. “Confidential Information” means any information that relates to the actual or anticipated business, research, or development of RSR and any proprietary information, trade secrets, and know-how of RSR that is disclosed, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Confidential Information includes, but is not limited to, research, product plans, products, services, customer lists, development plans, inventions, processes, formulas, technology, designs, drawings, marketing, finances, and other business information, along with information received from third parties for which RSR has confidentiality obligations. Confidential Information of RSR is the sole property of RSR. Confidential Information does not include any information that: (1) was publicly known and made generally available in the public domain prior to the time the RSR disclosed the information to you, or (2) became publicly known and made generally available, after disclosure by RSR, through no wrongful action or inaction of you or others who were under confidentiality obligations. You agree not to disclose any Confidential Information to any third party or use the Confidential Information for any purpose other than (i) use and receipt of the Services in accordance with this Agreement; (ii) compliance with applicable laws; or (iii) with RSR’s written consent. You will take all reasonable precautions to prevent any unauthorized disclosure of all Confidential Information.
7.2. Security. RSR may maintain the RSR Technology used to provide the Services at third-party colocation, hosting, and telecommunication facilities, where they are subject to certain security precautions to prevent unauthorized access to the Services. You acknowledge that, notwithstanding such security precautions, unauthorized third parties may gain access to the Services and to any or all Customer Data. The information that RSR collects may be stored locally on your device and may be transmitted to our servers in different countries where RSR, its affiliates, or any of their service providers operate. The transmission of information over wireless and wired networks is not inherently secure. RSR uses many tools to help protect your information against unauthorized access and disclosure. However, we do not guarantee that your personal information or private communications will always remain private when using RSR. If you access the Services from the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure that differ from United States laws, please be advised that through your continued use of the Services, which are governed by United States law, you may be transferring your personal information and Customer Data to the United States or any other country in which RSR or its subsidiaries, affiliates or service providers maintain facilities and you consent to that transfer. The Services are not intended to be a data storage or backup service; and the Customer Data you provide may be destroyed or altered in connection with the provision of the Services. You agree and understand that it is your responsibility to back up your Customer Data to your personal computer or external storage device and to ensure such backups are secure.
7.3. Analytics and Tracking Technologies. We may use, and may allow third party service providers to use, cookies or similar technologies to collect information about your browsing activities over time and across different websites following your use of the Services. This may provide us with other information about you, such as the country and region from which you access the Services.
8. Representations, Warranties, and Disclaimers.
8.1. Your Representations and Warranties. You represent and warrant that:
(a) you have the legal right, power and authority to enter into this Agreement and to perform all of your obligations under this Agreement;
(b) your entrance into this Agreement does not violate any agreement, understanding, or arrangement between you and any third party;
(c) your use of the Services and your performance of your obligations under this Agreement will at all times comply with all applicable laws;
(d) you own and control all of the rights to the Customer Data that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute that Customer Data, to or through the Services;
(e) the use and posting or other transmission of such Customer Data does not violate this Agreement and will not violate any rights of or cause injury to any person or entity; and
(f) you are not a citizen, national or resident of, nor under the control of, a country to which the United States has prohibited export, or that has been designated by the United States government as a “terrorist supporting” country; (iv) you are not listed on any United States government list of prohibited or restricted parties (e.g., the United States Department of Commerce Table of Denial Orders, and the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers); and (v) you will not export or re-export any portion of the Services, directly or indirectly, to the persons in any of the above-mentioned countries or on the above-mentioned lists.
8.2. Warranty Disclaimer. RSR AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT. RSR AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (1) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, OR DATA, (2) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (3) ANY STORED CUSTOMER DATA WILL BE SECURE, COMPLETE, TIMELY, ACCURATE, OR RELIABLE, (4) THE QUALITY OF THE SERVICES OR ANY OTHER INFORMATION, ITEMS, OR MATERIALS OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, OR (5) ERRORS OR DEFECTS WILL BE CORRECTED. THE SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY RSR AND ITS LICENSORS. NO ADVICE, INFORMATION OR ACTION FROM RSR OR ANY OTHER SOURCE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8.3. Communications Delays and Outages. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, OUTAGES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, TELEPHONY, AND ELECTRONIC COMMUNICATIONS. RSR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS BEYOND ITS REASONABLE CONTROL.
9. No Medical Advice.
RSR provides the Services for informational purposes only. The Services are NOT intended for use in connection with active patient monitoring, continuous monitoring by a healthcare provider or the patient, or any diagnosis, prognosis, or procedure. RSR has no obligation to monitor any Customer Data. THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. RSR is not a medical professional, and RSR does not provide medical services or render medical advice. The Services are not a substitute for the advice of a medical professional, and the information made available on or through the Services should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition. If you require medical advice or services, you should consult a medical professional. YOUR USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND RSR. RSR is not a healthcare provider. If at any time you are concerned about your care or the treatment, or you believe or someone else advises you that you have a serious or life-threatening condition, call 9-1-1 immediately in areas where that service is available, or go to the nearest emergency room.
You will indemnify and hold harmless (and, if requested by RSR, defend) RSR, its parent organizations, subsidiaries, other corporate affiliates, and licensors, and their respective officers, directors, employees, attorneys and agents, from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (1) any claim alleging that transmission, storage, or other use of Customer Data infringes the rights of, or has caused harm to you or a third party; or (2) a claim alleging or based upon any facts that, if true, would constitute a violation by you or your Users of any of your covenants, representations, or warranties in this Agreement. RSR will provide reasonable information and assistance in connection with the defense and settlement of the claim.
11. Limitations of Liability.
11.1. Limitation of Liability. EXCEPT FOR YOUR OBLIGATION TO PAY US CONTRACTED-FOR AMOUNTS, YOUR LIABILITY FOR YOUR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, AND YOUR INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED UPON CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE) EXCEED THE LESSER OF (i) THE TOTAL FEES THAT YOU HAVE PAID US IN EXCHANGE FOR YOUR USE OF THE SERVICES OR (ii) $1,000.
11.2. Disclaimer of Consequential and other Indirect Damages. EXCEPT FOR YOUR LIABILITY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND YOUR INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF CUSTOMER DATA OR OTHER INTANGIBLE PROPERTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES. IN SUCH AN EVENT, THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.
11.3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY RSR TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.
11.4. Remedy. If you are not satisfied with the Services, you should discontinue using them. This is your only remedy, except for the other remedies expressly permitted in this Agreement.
12. Resolving Disputes.
Customer service is a priority, but if there’s an issue that needs to be resolved, this section outlines what is expected of both of us.
12.1 Initial Informal Dispute Resolution. Before either Party files a claim against the other, it agrees to try to resolve the dispute informally by contacting the other Party via email. If a dispute is not resolved within 30 days of submission, you or RSR may bring a formal proceeding.
12.2. Arbitration Agreement. You and RSR agree to resolve any claims relating to this Agreement or the Services, whether or not such claims involve a third party, through final and binding arbitration, except as set forth under “Exceptions to Agreement to Arbitrate” below. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This arbitration agreement will survive the termination of your relationship with RSR.
12.3. Arbitration Notification. If either of us intends to seek arbitration under this agreement, the Party seeking arbitration must first notify the other Party of the dispute in writing at least 30 days in advance of initiating the arbitration. Notice to RSR should be sent to us via email to [email protected], with a duplicate copy sent via registered mail, return receipt requested, to the mailing address specified on our website. The notice must describe the nature and basis of the claim and the relief being sought.
12.4. Arbitration Procedures. You may bring claims only on your own behalf. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in Boston, Massachusetts, or any other location the Parties mutually agree to.
In the event that the American Arbitration Association is unwilling or unable to set a hearing date within one (1) year of filing the case, then either RSR or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services.
Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement.
12.5. Arbitration Fees. The AAA rules will govern payment of all arbitration fees.
12.6. Exceptions to Agreement to Arbitrate. Either Party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
You may opt out of this agreement to arbitrate, but to opt out, you must notify RSR in writing within 30 days of the date that you first became subject to this arbitration provision. You must provide notice to us via email to [email protected], with a duplicate copy sent via registered mail, return receipt requested, to the mailing address specified on our website. You must include your name and address, the primary contact and account administrator’s name and address, and a clear statement that you want to opt out of this arbitration agreement.
IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND RSR AGREE THAT THERE WILL NOT BE A JURY TRIAL. You and RSR unconditionally waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this agreement in any way.
12.7. Prohibition of Class Arbitrations. YOU MAY ONLY RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. This agreement does not allow class or collective arbitrations even if the AAA procedures or rules would allow them. Notwithstanding any other provision of this agreement, the arbitrator shall not have the power to determine that class arbitration is permissible. The arbitrator also shall not have the power to preside over class or collective arbitration, or to award any form of class-wide or collective remedy.
If for any reason the prohibition of class arbitrations set forth above cannot be enforced, then the agreement to arbitrate will not apply.
12.8. Judicial Forum for Disputes. IN THE EVENT THE AGREEMENT TO ARBITRATE IS FOUND NOT TO APPLY TO YOU OR YOUR CLAIM, YOU AND RSR AGREE THAT ANY JUDICIAL PROCEEDING RELATING TO THIS AGREEMENT OR THE SERVICES OR SOFTWARE MUST BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF BOSTON, MASSACHUSETTS. BOTH YOU AND RSR CONSENT TO VENUE AND PERSONAL JURISDICTION THERE.
13. Copyright Complaints and Content Removal Policy.
13.1. In General. RSR respects the intellectual property rights of others and will respond to notices of alleged copyright infringement that comply with the law. RSR reserves the right to delete or disable accounts or Customer Data alleged to violate copyright laws or this Agreement.
13.2. Violation of IP Rights. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the internet infringes their rights under United States copyright law. If you believe there has been a violation of your intellectual property rights (or if you are authorized to act on behalf of the copyright owner), please contact RSR’s designated agent for alleged copyright infringement by sending a notice to [email protected] with the following information:
- An electronic or physical signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed;
- A description of where the material is located on the Services;
- Your address, telephone number, and e-mail address;
- A statement of your good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and,
- A statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
14.2. Assignment. This Agreement will be binding on and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Neither Party may assign or otherwise transfer this Agreement, whether voluntarily or by operation of law, without the other Party’s prior written consent. Any attempted assignment without the other Party's written consent shall be null and void. Either Party may assign this Agreement to any parent, subsidiary or affiliate and to any successor to its business, whether by merger, sale of assets, or otherwise. RSR also may, in its discretion, subcontract and otherwise delegate any or all of its obligations hereunder, but shall nevertheless remain responsible for the performance of its obligations hereunder.
14.3. Relationship of the Parties. The Parties expressly agree that they are independent contractors and do not intend for this Agreement to be interpreted as an employment agency, joint venture, or partnership relationship.
14.4. Injunctive Relief. Actual or threatened breach of Section 2 (Your Responsibilities and Restrictions), Section 3 (Grant of License), Section 5.3 (Post-Termination Requirements), Section 6 (Proprietary Rights), or Section 7 (Confidentiality and Privacy) may cause immediate, irreparable harm that would be difficult to calculate and could not be remedied by payment of damages alone. Accordingly, RSR will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.
14.5. Governing Law. This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of Delaware, without regard to its conflict of laws principles. Any cause of action brought by your or any Users arising out of or related to this Agreement must be brought within one (1) year after the later of: (i) the date when the cause of action arose or (ii) the date when you realized the first loss in connection with such cause of action; otherwise, such cause of action will be permanently barred.
14.6. No Third-Party Beneficiaries. This Agreement is made for the benefit of RSR and you, and not for the benefit of any third parties, except that the Service Providers are third-party beneficiaries to these Terms. Each Service Provider will have the right (and will be deemed to have accepted such right) to enforce these Terms against you as a third-party beneficiary of these Terms with respect to the Service Providers. Other than the Service Providers, no other person or entity will be a third-party beneficiary to this Agreement.
14.7. No Waiver. No failure to exercise or enforce any right or provision of this Agreement, nor any waiver of any default or breach of this Agreement by either Party will be deemed to imply or constitute a waiver of any other default or breach of this Agreement by either Party, whether of a similar nature or otherwise.
14.8. Severability. In the event that one or more of the provisions of this Agreement is invalid or otherwise unenforceable, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the enforceability of remaining provisions will be unimpaired.
14.9. Subsequent Agreements. In order to be effective, all terms and conditions of subsequent agreements related to any subject matter in this Agreement must be agreed upon in writing and signed by both Parties.
14.10. Force Majeure Events. Neither Party will be liable for failure to perform its obligations under this Agreement if that failure results from any circumstances beyond its reasonable control, including acts of God, strikes, labor stoppages, inability to obtain materials or labor, power or machinery breakdown or failure, fire, flood, earthquakes, epidemics, pandemics, explosion, war, terrorism, invasion, riot, or other civil commotion, embargoes or blockades in effect, national or regional emergency, passage of laws or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
14.11. Notice. Except as provided elsewhere in this Agreement, either Party may give notice by written communication sent by next-day mail delivered by a nationally recognized delivery service or by email to: (i) if to you, to your address and email address on record that you provided in connection with your subscription for the Services, or (ii) if to RSR, to Ready Set Recover, LLC, PO Box 742, Stockbridge, MA 01262. Such notice shall be deemed to have been given upon the fifth business day after mailing or the second business day after emailing. By downloading, using or accessing the Services, you understand that RSR may send you information via email regarding the Services, including: (a) notices about your use or misuse of the Services; (b) Updates and new products or features, and (c) promotional information regarding RSR’s products and services. If you do not wish to receive the promotional information, you will have the ability to unsubscribe by following the instructions in the message.
14.12. Modification to Terms. RSR reserves the right to update, revise, supplement and otherwise modify this Agreement from time to time. Any such changes to this Agreement will be effective immediately for new users and ten (10) days after notification (including by posting a notice on the RSR website) for current users. Current users are encouraged to review this Agreement periodically for changes. If you do not wish to accept any change, please discontinue using the Services. Your continued use of the Services following the ten (10) day notice period constitutes your acceptance of those changes.
Last updated September 14, 2021.